Appendix — Jones v. Preuit

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

SAMUEL JONES, JR.,

Petitioner,

PREUIT & MAULDIN, a partnership;

and E.F. MAULDIN, individually

and as Executor of the Estate

of Leonard Preuit, deceased;

and PREUIT & MAULDIN

i ti i dd

Respondents.

Appendix to Petition for Writ of

Certiorari to the United States

Court of Appeals

for the Eleventh Circuit

C. V. Stelzenmuller*

BURR & FORMAN

3000 SouthTrust Tower

Birmingham, AL 35203

(205) 251-3000

J. G. Speake

SPEAKE, SPEAKE & REICH

P.O. Box 5

Moulton, AL 35650

(205) 974-1171

Counsel for Petitioner,

Samuel Jones, Jr.

* Counsel of Record

App. l

APPENDIX A

Samuel JONES, Jr., Plaintiff-Appellant

Vv.

PREUIT & MAULDIN, et al.,

Defendants-—Appellees.

No. 84-7482

United States Court of Appeals

Eleventh Circuit.

June 21, 1985.

On February 24, 1984, Samuel Jones

filed suit against Preuit & Mauldin, a

partnership engaged in the business of

servicing equipment. The complaint al-

leged that on April 8, 1982, the defen-

dants, acting pursuant to ALA. CODE § 35-

11-111 (1975), obtained writs of attach-

ment for three International Harvester

cotton pickers belonging to Jones. The

sheriff of Lawrence County seized the

machines on April 18, 1982, without no-

App. 2

tice to Jones or a preseizure hearing.

The attachment also took place prior to

judgment in the defendants' underlying

state court actions for a debt for re-

pairs to the pickers. Jones claims that

such prejudgment attachment procedures

deprived him of due process of law in

contravention of Fuentes v. Shevin, 407

U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556

(1972), and its progeny. Jones brought

this claim under 42 U.S.C.A. § 1983 (West

1981). The defendants moved for dismis-

sal for failure to state a claim and for

failure to bring the suit within the sta-

tutory time limit. The district court,

586 F.Supp. 1563, granted the motion and

rejected the plaintiff's claim that the

most relevant state statute was the

three-year statute governing suits on at-

tachment bonds, ALA. CODE § 6-6-148

App. 3

(1975). Instead, the court applied the

one-year “catchall” statute of limita-

tions, covering "actions for any injury

to the person or rights of another not

arising from contract and not specifi-

cally enumerated in this section."

ALA. CODE § 6-2-39(a)(5) (1975). Since

the plaintiff had filed suit 22 months

after the attachment, the court dismissed

the case.

I. STATEWIDE CHARACTERIZATION OF SEC-

TION 1983 CLAIMS

Because Section 1983 does not con-

tain a specific statute of limitations,

U.S.C.A. § 1988 (West 1981) directs

courts to select and apply the most ap-

propriate or analogous state statute of

limitations. Burnett v. Grattan,

U.S. , 104 S.Ct. 2924, 82 L.Ed.2d 36

(1984); Board of Regents v. Tomanio, 446

App. 4

U.S. 478, 483, 100 S.Ct. 1790, 1794, 64

L.Ed.2d 440 (1980); Johnson v. Railway

Express Agency, Inc., 421 U.S. 454, 462,

95 §.Ct. 1716, 1721, 44 L.Ed.2d 295

(1975). So long as that analogous state

provision is not inconsistent with the

policies underlying the federal cause of

action, Johnson, 421 U.S. at 465, 95

S.Ct. 1722; Ehlers v. City of Decatur,

614 F.2d 54 (5th Cir. 1980), a federal

court may treat the state statute of li-

mitations as controlling.

In this Circuit the choice of an ap-

propriate state statute has proceeded in

two steps. First, the court determines

the “essential nature" of the claim.

Federal law determines the essential na-

ture of the claim, yet federal law re-

solves questions largely by reference to

State law. Shaw v. McCorkle, 537 F.2d

App. 5

decides which statute of limitations a

state court would apply if faced with a

Claim of the same type or class as the

Section 1983 claim. Beard v. Stephens,

372 F.2d 685 (5th Cir. 1967).

The Supreme Court's recent decision

in Wilson v. Garcia, U.S. , 105

S.Ct. 1983, 85 L.FEd.2d 254 (1985),

relieves this court of the difficult task

of characterizing the essential nature of

Section 1983 claims in varying

contexts.2/ The Court in Wilson held

first that the characterization of a Sec-

tion 1983 claim for statute of limita-

tions purposes is a question of federal

law. Next, the court held that a simple

and uniform characterization of all Sec-

tion 1983 claims best fits the statute's

remedial purpose because a uniform cha-

racterization prevents the “uncertainty

App. 6

uniform characterization prevents the

"uncertainty and time-consuming

litigation" caused when court predicate

their choice of the correct statute of

limitations -"on an_— analysis’ of the

particular facts of each claim." 105

S.Ct. at 1945. Hence, federal courts

must "select, in each State, the one most

appropriate statute of limitations’ for

all § 1983 claims." Id. at 1947.

Finally, the Wilson court held that

federal courts hearing claims under Sec-

tion 1983 should borrow the state limita-

tions statute governing "personal injury"

claims rather than a "catchall" limita-

tions period, a limitations statute for

damage to property or breach of contract,

or a limitations statute governing suits

against public officials. The task

facing this court, therefore, is to

App. 7

choose the one Alabama limitations sta-

tute governing claims for recovery of da-

mages for "personal injury" that federal

courts should borrow for purposes of 42

U.S.C. § 1983 (West 1981) .2/

II. ESSENTIAL NATURE OF SECTION 1983

PERSONAL INJURY CLAIMS

Two Alabama statutes govern the li-

mitations periods for bringing personal

injury suits. The stx<vess statute,

ALA. CODE § 6-2-34(1) (1975), governs all

actions "for any trespass to person or

liberty, such as false imprisonment or

assault and battery." The one-year sta-

tute, ALA. CODE § 6-2-39 (a)(5) (1975),

applies to actions "for any injury to the

person or rights of another not arising

from contract and not specifically enume-

n3/

rated in this section. The choice be-

tween these two statutes depends’ upon

App. 8

whether the wrongful act constitutes a

trespass or a trespass on the case: Sec-

tion 6-2-34(1) governs trespass actions

while Section 6-2-39(a)(5) governs tres-

pass on the case. C.O. Osborn Contract-

ing Co. v. Alabama Gas Corp., 273 Ala. 6,

135 So.2d 166 (1961); Smith and Gaston

Funeral Directors v. Dean, 262 Ala. 600,

80 So.2d 227 (1976); Beard v. Stephensm

372 F.2d 685 (5th Cir. 1967). The choice

of the proper and analogous Alabama sta-

tute for purposes of Section 1983 claims

will depend, then, on whether the "“perso-

nal injury" that is the essential nature

of all Section 1983 claims is more akin

to trespass or trespass on the case.

This calls for some elaboration on the

"essential nature” of Section 1983 claims

and is therefore a question of federal

law, but one that may be informed by the

App. 9

state law definition of trespass and

trespass on the case.

Under Alabama law, trespass involves

an intentional act done with force and

immediately injurious to the person of

another or to property in his or her pos-

session. Trespass on the case would lie

when the wrongful act causes harm only

indirectly and without an intentional act

of force. 4/ W.T. Ratliff Co.,

Inc. v. Henley, 405 So. 2d 141

(Ala. 1981). Trespass requires intentio-

nal or "wanton" causation of injury as

opposed to mere negligence, City of Fair-

hope v. Raddcliffe, 49 Ala. App. 224, 263

So.2d 682 (1972); Cochran v. Hasty, 378

So.2d 1131 (Ala. Civ. App. 1979), or an

omission of a duty to act. Sasser v. Di-

xon, 290 Ala. 17, 273 So.2d 182 (1973).

Liability based on respondent superior is

App. 10

framed as trespass on the case. C.O. Os-

born Construction Co. v. Alabama Gas

Corp., 273 Ala. 6, 135 So.2d 166 (1961).

The characterization of Section 1983

claims given by the Supreme Court in Wil-

son resembles an action in trespass on

the case. The Court analyzed the legis-

lative history of the Reconstruction Ci-

vil Rights Acts and noted that the spe-

cific historical catalyst for those sta-

tutes was the "campaign of violence and

deception in the South, fomented by the

Ku Klux Klan, which was denying decent

citizens their civil and political

rights." 105 S.Ct. at 1947. See gene-

rally A. TRELEASE, WHITE TERROR 261-73

(1971) (describing activities of Ku Klux

Klan in northern Alabama). The Congress

had been especially concerned with mur-

der, whippings, lynchings and banishings;

App. 11

the statutory remedy for violation of

constitutional rights was meant to res-

tore peace and justice. 105 S.Ct. 1947;

see also Briscoe v. LaHue, 460 U.S. 325,

336-40, 103 S.Ct. 1108, 1116-18, 75

L.Ed.2d 96 (1982). These acts of vio-

lence are all "“direct" and intentional

injuries to the person that would sound

in trespass. Cf. Beard v. Stephens, 372

F.2d 685 Sth Cir. 1967); Holcombe v. Whi-

taker, 294 Ala. 430, 318 So.2d 289

(1975); Donald v. Swann, 24 Ala.App.

463, 137 + So. 17, cert. denied, 223

Ala. 293, 137 So. 181 (1931).

On the other hand, the remedy ulti-

mately chosen by the 42d Congress in Sec-

tion 1983 did not address only those

wrongs that most concerned the legisla-

tors. Klan activities epitomized a gene-

ral adequacy and inequality in state law

App. 12

enforcement. Monroe v. Pape, 365

U.S. 167, 172-83 81 S.Ct. 473, 476-82, 5

L.Ed.2d 492 (1961). The “unifying theme"

of the statutes, equality of all persons

under the law, constituted a goal much

broader than the prevention of physical

violence. Wilson, 105 S.Ct. at 1947.

Nothing in the language or legislative

history limits Section 1983 solely to the

intentional deprivations of constitutio-

nal rights. Parratt v. Taylor, 451

U.S. 527, 534, 1901 S.Ct. 1908, 1912, 68

L.Ed.2d 420 (1981); Baker v. McColan, 443

U.S. 137, 139-40, 99 S.Ct. 2689, 2692-93,

61 L.Ed.2d 433 (1979).

Obviously, then, some Section 1983

Claims will sound in trespass and other

in trespass on the case. Some will in-

volve direct injuries, Shillingford

v. Holmes, 634 F.2d 263 (5th Cir. Unit A

App. 13

1981) (unjustified assault on citizen by

police officer), and others will involve

indirect injuries. Glover v. Alabama De-

partment of Corrections, 734 F.2d 691

(llth Cir. 1984) (prison official induces

several prisoners to assault another pri-

soner), or injuries caused without the

use of force, Espanola Way

Corp. v. Meyerson, 690 F.2d 827 (11th

Cir. 1982) (city commissioners' alleged

harassment of business through excessive

regulation), cert. denied, 460 U.S. 1039,

103 S.Ct. 1431, 75 L.Ed.2d 791 (1983).

As the Supreme Court has stated, "[a] ca-

talog of . . . constitutional claims that

have been alleged under § 1983 would en-

compass numerous and diverse topics and

subtopics." Wilson, 105 S.Ct. at 1947.

The Section 1983 remedy ecompasses a

broad range of tort analogies, Id. at

1947.

x eee

. !

es sn Nba aimee. as

App. 14

The "essential nature" of a Section

1983 personal injury claim cannot, there-

fore, be determined simply by asking for

which of the state law causes of action

personal injury, such as trespass or

trespass on the case, could also be

brought under the federal statute. That

question yields too many answers. The

appropriate characterization of Section

1983 personal injury claims must be de-

termined by searching the legislative

history of the statute and isolating the

particular type of wrong that was most

paradigmatic, the one category of wrongs

that the legislators intended first and

foremost to address. The Supreme Court

in Wilson made such a determination in

order to conclude that Section 1983

Claims are personal injury claims rather

than general statutory claims falling

App. 15

within a catchall limitations’ statute.

The scarcity of statutory claims in 1871

and the primacy of constitutional claims

under Section 1983 prevented the use of

state catchall statute. Constitutional

claims are only a subset of the claims

falling within the Section 1983 remedy,

but they were the most significant subset

in the eyes of the 42d Congress. Wilson,

105 S.Ct. at 1947.

Similarly, personal injuries sound-

ing in trespass make up the most signifi-

cant subset of claims within Section

1983. The paradigmatic personal injuries

covered by the statute, those that moti-

vated the Congress to take action, were

acts of international and direct violence

on the part of the Ku Klux Klan. The

1871 Act was enacted after President

Grant described for Congress the break-

App. 16

down of law and order in the Southern

States. Conditions “rendering life and

property insecure and the carrying of the

mails and the collection of the revenue

dangerous" led the President to ask for

legislation. The President's request

stated that proof of the conditions in

the South had been presented to the Se-

nate. S.REP. NO. 1, 42d Congress, lst

Sess. (1871). That Senate Report, relied

upon extensively by the Congress, see

CONG. GLOBE. 42d Congress, lst

Sess. App. 166-67 (1871) (remarks of

Rep. Williams), detailed murders, whip-

pings and other acts of violence on the

part of the Klan. Senator Sherman's ori-

ginal resolution calling for the passage

of a bill was motivated by the activities

of armed men who had “by force, terror

and violence subverted all civil autho-

App. 17

rity,. . . overthrowing the safety of

persons and property and all those rights

which are the primary basis and object of

all civil government." The bill would

"punish such organized violence.” Id. at

152.

The debates focused on arson, rob-

bery, whippings, shootings, murders, and

other forms of violence and intimidation

perpetrated by the Klan. Briscoe _v. La-

Hue, 460 U.S. 325, 337, 103 S.Ct. 1108,

1117, 75 L.Ed.2d 96 (1982). These pri-

mary wrongs were only compounded by the

lack of effective state law remedies.

When the legislators complained that the

state authorities had been unable or un-

willing to protect the constitutional

rights of individuals, see Patsy v. Board

of Regents of Florida, 457 U.S. 496, 505,

102 S.Ct. 2557, 2562, 73 L.Ed.2d 172

will

App. 18

(1982), they usually meant that a black

citizen had no recourse against illegal

acts of violance or trespass. See, e.g.,

CONG. GLOBE, 42d Cong., 1st Sess. 374

(1871) (remarks of Rep. Lowe) ("While

murder is stalking abroad in disguise,

while whippings and lynchings and banish-

ings have been visited upon unoffending

American citizens, the local administra-

tions have been found inadequate or un-

willing to apply the proper’ correc-

tive."); id. at 156 (remarks of

Sen. Sherman) (Klansmen do not “think it

any crime to kill a negro or rob a Yan-

kee"); id. 199-200 (remarks of Sen. Nye);

id. at 320-21 (remarks of Rep. Stough-

ton); id. at 441-444 (remarks of

Rep. Butler).

The extensive legislative history

demonstrates that members of the 42d Con-

App. 19

gress considered direct acts of violence

against black citizens to be paradigmatic

wrong addressed by the new state. Hence,

the essential nature of a Section 1983

claim fits the description of trespass

under Alabama law. We conclude on the

basis of Congressional intent and the Su-

preme Court's opinion in Wilson v. Gar-

cia, supra, that a Section 1983 claim

should be characterized as a personal in-

jury action along the lines of a tres-

pass. Therefore, federal courts in Ala-

bama will borrow the length of the li-

mitations period as found in ALA. CODE

§ 6-2-34(1) (1975), together with’ the

proper state law treatment of related

questions of tolling and application.

That statute contains a six-year limita-

tion period. Jones filed his suit before

this limitation period had elapsed and

reel

App. 20

the district court improperly dismissed

the case .2/

REVERSED.

* * *

Samuel JONES, Jr., Plaintiff

Vv.

PREUIT & MAULDIN, etc., et al., Defendants.

Civ. A. No. 84-AR-5131-NW.

United States District Court,

N.D. Alabama,

Northwestern Division.

June 15, 1984.

MEMORANDUM OPINION

ACKER, District Judge.

This action was brought by plain-

tiff, Samuel Jones, Jr. (Jones), pursuant

to 42 U.S.C. § 1983 charging that certain

of plaintiff's property was wrongfully

seized under color of state law by con-

stitutional violation inherent in the at-

App. 21

tachment procedure. The portion of the

complaint here pertinent alleges that the

"procedure did not comply with the re-

quirements of the Fourteenth Amendment

concerning deprivations of property

without due process of law in relation to

prejudgment seizures of property." The

alleged constitutional deprivation occur-

red on April 8, 1982. Jones filed his

complaint on February 24, 1984. De fen-

dants have filed a motion to dismiss the

complaint, asserting as an absolute de-

fense the statute of limitations of one

year. If defendants are correct and if

the applicable statute of limitations is

one year, then plaintiff is clearly

barred on the face of his complaint. -If,

however, the applicble statute of limita-

tions is three years, as Jones contends,

then his action may proceed to a hearing

he merits.

App. 22

It no longer requires citation of

authority for hte proposition that be-

cause § 1983 itself contains no statute

of limitations, the federal courts 100k

to and apply the state statute of limita-

tions most nearly analogous to the parti-

cular § 1983 claim being brought. How-

everr, aS was eloquently elucidated by

Hon. Robert Propst in Fomby v. City of

Calera, 575 F.Supp. 221, 223

(N.D. Ala. 1983), "[{t]he choice of a li-

mitations period for a federal cause of

action is itself a question of federal

law". (emphasis added). This Court tho-

roughly agrees with Judge Propst. Judge

Propst's persuasive rationale is remini-

scent of one of the opening scenes in

Gone With the Wind, which contains the

following dialogue taking place among

field hands at the close of the day, with

App. 23

Tara in the distant background. The

scene in the screen play is called "Quit-

ting Time at the Plantation". Most se-

rious moviegoers will remember.

Scene

Cotton field, with field hands

at work plowing furrows. The

bell at Tara is heard faintly.

One of the hands, Elijah stops.

Elijah: Quittin' Time!

Another huge black man, known

as Big Sam, turns on Elijah

sharply:

Big Sam: Who said?

Elijah: I sez.

Big Sam: You can't sez. I'se

do foahman. I'se de one dat

sez when it's time to quit.

[He calls out loudly to the

other hands.] QUITTIN' TIME!

To paraphrase Big Sam inversely and to

reiterate Judge Propst, it is the federal

court which says when it is "STARTIN'

TIME” under § 1983. Although the federal

court must look to the state law for the

App. 24

appropriate statute of limitations, it is

not the state which "sez" what particular

Statute of limitations the federal court

must apply. The state simply furnishes

its various statutes of limitations for

perusal and _ selection by the _ federal

court in the context of the particular

§ 1983 complaint.

Jones here urges that the Alabama

statute of limitations more nearly analo-

gous to his situation is Ala. Code § 6-6-

148 (1975), which reads as follows:

At any time within three

years of the suing out of the

attachment, before or after the

action is determined, the de-

fendant in attachment may com-

mence an action on the attach-

ment bond and may recover such

damages as he has actually sus-

tained if the attachment’ was

wrongfully sued out and, if

sued out of maliciously as well

as wrongfully, the jury may, in

addition, give vindictive dama-

ges.

App. 25

On the other hand, defendants assert that

the here appropriate statute of limita-

tions is Ala. Code § 6-2-39(a)(5) (1975),

which reads as follows:

(a) The following must be con-

menced within one year:

* * *

(5) Actions for any in-

jury to the person or rights of

another not arising from con-

tract and not specifically enu-

merated in this section.

Jones must acknowledge that his is

not a suit on a bond, which admittedly is

a specialized form of contract and, if

sued upon, constitutes an action ex con-

tractu. Rather, Jones insists that his

action, although admittedly ex delicto,

is controlled by the three year statute

provided by Ala. Code § 6-6-148 (1975)

for suits on attachment bonds. He relies

entirely upon a dictum in Goldstein

v. Nobles, 198 Ala. 430, 73 So. 822

App. 26

(1916). This hoary case contains lan-

guage which Jones would interpret to give

him a three year statute of limitations.

He would give a signficance to Goldstein

which does not bear up under careful ana-

lysis. The pertinent language from Gold-

stein is as follows:

Section 2966 of the Code of

1907 [6-6-148] authorizes suit

upon the bond any time within

three years before or after

suit is determined, and our

court has held that this right

exists as to the common-law ac-

tion as well as a suit upon a

bond. Alsop vv. Lidden, 130

Ala. 553, 30 South. 401; Brown

v. Master, 104 Ala. 463,

South. 443. It is true these

cases construed the statute as

it existed prior to the Code of

1907, and a part of section 565

of the Code of 1896 (now sec-

tion 2966 of the Code of 1907)

was left out of the present

Code, but there was no change

as to the right to bring the

action either before or after

the determination of the suit.

It has also been held that this

Statute applies to actions for

the wrongful suing out of gar-

nishments as well as attach-

App. 27

ments. Barber v. Ferrill, 57

Ala. 446. Hence the trial

court did not err in overruling

the defendant's demurrer to the

complaint for failing to aver

that the suit had been deter-

mined, or in sustaining the de-

murrers to the special pleas

setting up that this action was

prematurely brought. (emphasis

added).

198 Ala. at 431-32; 73 So. at 823.

To understand Goldstein the first

important fact to recognize is that the

issue presented here by Jones was not

presented in Goldstein. Nowhere was the

“Supreme Court in Goldstein confronted

with the question of whether or not the

victim of a wrongful attachment can bring

a tort action for wrongful attachment at

any time within three years after the oc-

currence. Rather, in Goldstein the issue

was simply whether or not a tort action

for an allegedly wrongful attachment can

be brought before a determination in the

: App. 28 3

main case of the question of whether or

not the attachment was, in fact or law,

erroneous and therefore “wrongful”. If

the Alabama Court really meant to _ say

that there is a three year statute of li-

mitations for the tort of wrongful at-

tachment (which this Court disputes, in-

fra) its inartful expression of _ the

thought in Goldstein was not a part of

its holding, was unnecessary to its deci-

sion, and thus was pure dictum. Dictum

‘th not the stuff for the fashioning of a

new § 1983 limitation.

Secondly, and more importantly, this

Court does not believe that the Alabama

Court in 1916 either believed or intended

to express a belief that the statute of

limitations for wrongful attachment is

three years in Alabama. Not only has the

Alabama Court never reiterated or hinted

App. 29

any such intent between 1916 and this

date in 1984, but that court's limited

intent can be discerned from the language

which the court actually used. Its lan-

guage may have been somewhat misleading,

but what it was trying to say becomes

clear upon a careful reading. When the

court said "[sJection 2966 of the Code of

1907 [§ 6-6-148] authorizes suit upon the

bond any time within three years before

or after suit is determined, and our

court has held that this right exists as

to the common-law action as well as a

suit upon a bond" (emphasis supplied),

the argument was to justify the bringing

of a common law action before a determi-

nation of the efficacy of the garnishment

writ. 73 So. at 823. The gratutious use

of the words "or after" was not intended

by the Alabama Court to be related gram-

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App. 30

matically to the three year statute of

limitations, but rather to support the

elimination of the defense of prematurity

where such a suit is brought before a fi-

nal determination of the legal effect of

the attachment. While its grammar may

have been imperfect, the Alabama Court's

reasoning shines through.

Thirdly, the Alabama Court's cita-

tion of Alsop v. Lidden, 130 Ala. 548, 30

So. 401 (1901) and Brown v. Master, 104

Ala. 451, 16 So. 443 (1894), as authori-

ties for its proposition again proves the

limitation on that Court's holding. Nei-

ther Alsop nor Brown involve a choice be-

tween statutes of limitations. To the

contrary, both of these =e cases

deal with the defense of prematurity

where there had been no predetermination

of a want of probable cause for. an

App. 31

attachment or a garnishment. This is a

distinction similar to the well recog-

nized distinction between the cause of

action known as "malicious civil prosecu-

tion" (which requires a prior adjudica-

tion against the prosecuting party) and

the cause of action known as "abuse of

process" (which does not require such a

prior adjudication). The Alabama Court

was, of course, correct in holding that

the common law or ex delicto action for

wrongful attachment does not have as a

prerequisite a judicial determination

that the attachment was wrongful. It is

a non sequitur which the Alabama Court

could not have meant to indulge to jump

to the conclusion that a person having

such an ex delicto cause of action can

wait three years to bring suit simply be-

cause he can bring an action ex contractu

App. 32

on the attachment bond within’ three

years.

Fourthly, the sharp difference be-

tween a contract claim and a tort claim

cannot be overemphasized. In the classic

tort action all actual damages (and even

punitive damages under some circum-

stances) proximately caused by the wrong-

ful act, are recoverable. However, in a

suit on a bond the face amount of the

bond places a limitation on the amount of

recovery, whether the damages are actual,

Or punitive, or both. Perhaps it would

be theoretically possible to draft a bond

of an unlimited monetary amount covering

all possible losses resulting from a

breach of the bond. But this Court is

not here dealing with such an hypotheti-

cal bond but with the law of Alabama

which does not contemplate the execution

App. 33

of a bond of unlimited amount in order to

obtain a writ of attachment. See

Ala. Code §§ 6-6-45, 6-6-120 (1975).

Lastly, it is not necessary for this

Court to explaint or to avoid the 1916

dictum in Goldstein. The more recent

truth, as expressed in Fomby v. City of

Calera, supra, is that a federal court in

ascertaining the proper period of limita-

tions in § 1983 cases must look to the

"essential nature" of the claim and can-

not be controlled by the tag which the

plaintiff may put on it. See Beard

v. Stephens, 372 F.2d 685 ‘5th

Cir. 1967). Applying this federal rule,

this Court finds that the "essential na-

ture” of Jones' claim, as unequivocally

described in his own complaint, is that

he sustained damages as a proxmiate con-

sequence of a denial of “due process”.

;

{

App. 34

It is impossible to squeeze such a claim

into the would-be category of a suit on

an attachment bond in order to push the

limitations period beyond one year.

Jones' wishful thinking is well argued by

counsel, but it ultimately fails. In

Harrison v. Emens, 235 Ala. 319, 179

So. 219 (1938) the Supreme Court of Ala-

bama recognized that the "essential na-

ture" of a claim for wrongful attachment

(whether brought on the attachment bond

[ex contractu] or directly for vexatious

Or malicious conduct [ex delicto]) is

tort-like. There, in suit brought on an

attachment bond, the Alabama Court said:

While the action in on the

bond, as authorized by Code

1923, § 6214 [6-6-148], yet so

far as "the nature and charac-

ter of the evidence necessary

to sustain it, is to be consi-

dered, bears a closer’ resem-

blance to an action for mali-

cious prosecutions, than to any

other action at common law. It

SOE tens Wom nn ES A aren 1 ie ene os

App. 35

is necessary for the plaintff

to aver in his complaint, the

falsity of the particular fact,

or facts, which may be stated

in the affidavit as the ground

of attachment. Tiller

v. Shearer, 20 Ala. 527. The

averment of the falsity of the

affidavit, though it may be ne-

gative in form, and may involve

proof of a negative, casts on

the plaintiff the onus of sup-

porting it by evidence either

direct, or of circumstances

from which the jury may fairly

infer the untruth of the fact

or facts stated in the affida-

vit. The right of recovery

rests on the wrongful or vexa-

tious use (or both), of the ex-

traordinary and harsh remedy by

attachment in [and] this forms

the gravamen of the plaintiff's

complaint. O'Grady v. Julian,

34 Ala. 88." Durr v. Jackson,

59 Ala. 203.

It is not essential to the-_

existence of a cause of action

that the attachment should be

both wrongful and vexatious or

malicious, but it is essential

that it be wrongful; that is,

that no debt exists. for the

collection of which the extra-

ordinary process may be

resorted to, or if such debt

exists, that no ground for the

issuance of the writ in fact

existed. (emphasis supplied).

App. 36

235 Ala. at 320; 179 So. at 219-20.

It is of more than passing interest that

the cause of action, i.e., malicious pro-

secution, which the Court in Harrison

found to bear a close resemblance to one

for wrongful attachment, has a one year

Statute of limitations. See Ala. Code §

6-2-39A(a) (1) (1975). It is

inconceivable to this Court that’ the

Alabama Legislature intended, when it

enacted § 6-6-148, to provide two years

beyond the "catchall" statute and beyond

the "malicious prosecution" statute when

a claim for wrongful attachment is

brought, not on the bond, but on a common

law theory of wrongful attachment most

closley resembling malicious prosecution.

It would indeed be a strained

construction of § 6-2-39(a) (5).

App. 37

The statute of limitations in Ala-

bama for claims arising out of violations

of "due process" rights has- routinely

ean considered by the Alabama courts and

by the federal courts to be the "“catch-

all" one year statute of limitations con-

tained in § 6-2-39(a) (5). Not only is

this the clear holding of the Supreme

Court of Alabama in Limbaugh v. Johnston,

393 So.2d 963 (Ala. 1981), but the Ala-

bama Court is clearly echoed in Rubin

v. O'Koren, 644 F.2d 1023 (5th Cir. Unit

B, 1981), and in Nathan Rodgers Construc-

tion & Realty Corp. v. City of Saraland,

670 F.2d 16, 20 (5th Cir. Unit B), reh'g

denied 676 F.2d 162 (5th Cir. Unit B,

1982) where the embryonic Eleventh Cir-

cuit said:

[T]he one-year statute applied

by the district court covers

‘actions for any injury to the

person or rights of another not

App. 38

arising from contract’

Ala. Code § 6-2-39(a)(5). This

is such an action.

To put it simply, the "essential nature"

of Jones' complaint does not involve an

attachment bond. Rather, the gravamen of

his complaint is an alleged due process

deprivation.

Not out of the pride manifested in

Big Sam's expression of his prerogative

as boss in the cotton field, but because

the duty of a federal court is to select

the most appropriate state statute of li-

mitations in § 1983 actions, and because

this Court deems that Jones' complaint of

a constitutional denial of "due process"

makes § 6-2-39(a)(5) a more analogous

Statute than any analogy which can be

drawn as to a case brought under § 6-6-

148, the Court concludes that defendants'

motion to dismiss is due to be granted.

App. 39

Plaintiff's complaint is therefore time

barred.

An appropriate order will be en-

tered.

App. 40

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN OF ALABAMA

NORTHWESTERN DIVISION

CIVIL ACTION NO. 84-AR-5131-NW

Entered: 6/15/84

SAMUEL JONES, JR.,

Plaintiff

PREUIT & MAULDIN, etc., et al.,

Defendants

ORDER

In conformity with the accompanying

Memorandum Opinion, it is ORDERED that

defendants’ motion to dismiss be and the

same is hereby GRANTED. Plaintiff shall

have and recover NOTHING of defendants,

and this action is hereby DISMISSED with-

out prejudice to any state claim on an

attachment bond.

App. 41

Costs are taxed against plaintiff.

DONE this 15th day of June, 1984.

/s/ William M. Acker, Jr.

WILLIAM M. ACKER, JR.

UNITED STATES DISTRICT JUDGE.

App. 42

APPENDIX A FOOTNOTES

i/ Despite the single structure _ for

analysis, courts in this Circuit have

used subtle but important differences in

characterizing the essential nature of

various Section 1983 claims. Some courts

have denominated the facts as alleged in

the complaint and a generalized statement

of the legal claim as the _ essential

nature of the claim. See Nathan Rodgers

Construction & Realty Corp. v. City of

Saraland, Alabama, ., OS ey. (5th

Cir. Unit B 1982) (essential nature is

"Suit against a city, its councilmen and

mayor for an asserted denial of property

rights resulting from delay in the issu-

ance of a sewer permit"); Prince v. Wal-

lace, S66 Fiee L176 (5th Cir. 1978);

Beard v. Stephens, 372 F.2d 685 (56th

Cig. 2DerE Other courts have gone one

step further and used this_ literal

description of the federal claim to group

it with similar state law claims. See

Whatley _v. Department of Education, 673

F.2d 873 (5th Cir. Unit B 1982) (employ-

ment due process claims grouped together

with actions for recovery of lost wages);

see also McGhee v. Ogburn, 707 F.2d 1312

(llth Cir. 1983); Sewell v. Grand Lodge

of tthe International Association of

Machinists and Aerospace Workers, 445

F.2d 545 (5th Cir. 1971), cert. denied,

404 U.S. 1024, 92 S.Ct. 674, 30 L.Ed.2d

674 (1972).

Under the first approach, most of

the work of evaluating the strength of

the relationship between the federal

Claim and various state claims is left

App. 43

for the second step of the process.

State law controls the evaluation. If

the facts and general description of the

federal claim could not be reframed as a

viable state law cause of action with a

Special statute of limitations, the claim

would fall into'the state's catchall pro-

vision simply because a state court would

place it there. By contrast, under the

second approach the crucial evaluation is

drawn at the first stage of the inquiry,

where state law is informative but not

controlling. Thus, even if the complaint

could not be recast as a state cause of

action with a special statute of limita-

tions, the court asks whether there is

any state claim of the same general type.

The Wilson decision departs from

both of these approaches because it cha-

racterizes all Section 1983 claims with-

out regard to the particular facts under-

lying individual claims. Because pre-

vious precedents in this Circuit were de-

cided under methods inconsistent with the

Wilson analysis, we must determine anew

the appropriate statute of limitations

under Alabama law.

2/ The defendants have not suggested to

this Court that Wilson only apply pro-

Spectively. We also note that the defen-

dants have taken no action in reliance on

precedent overruled by Wilson, and the

policies of intra-state uniformity and

certainty that underlie the Wilson deci-

sion would be hindered by failure to ap-

ply the decision retroactively. Each of

these facts cuts in favor of retroactive

ee ey aera ers

WE Me wu

App. 44

applicaiton of Wilson against the defen-

dants under Chevron Oil Co. v. Huson, 404

U.S. 97, 106-07, 92 S.Ct. 349, 355-356,

30 L.Ed.2d 296 (1971).

3/ Since the filing of this appeal, the

Alabama legislature has repealed Section

6-2-39 and extended the relevant limita-

tions period to two years. See Act of

Jan. 9, 1985, No. 85-39 1984 Ala. Acts -

(to be codified at ALA. CODE § 6-2-

38(1)). Because we hold that Section 6-

2-34(1) is the appropriate state statute

of limitations, we do not decide which

version of the catchall statute (the sta-

tute dealing with personal injury claims

sounding in trespass on the case) would

be applied as a matter of federal law in

this case.

4/ Alabama has modified the common law

distinction between trespass and case,

but the direct/indirect distinction

remains a dominant method for separating

the two causes of actic in cases involv-

ing injury to the pez-on. An indirect

injury is one that is merely "consequen-

tial” and not a direct result of the

wrongful act. The presence of some in-

tervening contributory cause shows that

an act is the indirect cause of injury.

Sasser v. Dixon, 290 Ala. 17, 273 So.2d

182 (1973); see Borland _v. Sanders Lead

Co. Inc., 369 So.2d 523 #£=x(Ala. 1979)

(establishing elements of proof for indi-

rect trespass to property).

App. 45

5/ The defendants do not raise any al-

ternative basis for affirming the dis-

trict court's dismissal of the case.

App. 46

APPENDIX B

SUPREME COURT OF THE UNITED STATES

PREUIT & MAULDIN ET AL. V. SAMUEL JONES, JR.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

NO. 85-794. Decided January 27, 1986

The petition for a writ of certiora-

ri is denied.

JUSTICE WHITE, dissenting.

In Wilson v. Garcia, U.S.

(1985), we held that an action under 42

U.S.C. § 1983 should be considered a per-

sonal injury action for purposes of bor-

rowing an appropriate state statute of

limitations. The present case presents

the question of what to do when more than

one state statute of limitations applies

to personal injury actions.

The respondent in this case is an

Alabama farmer who brought a § 1983 ac-

tion against petitioners for allegedly

—_

A ee ee i.

App. 47

violating his Fourteenth Amendment due

process rights by causing his equipment

to be seized pursuant cto prejudgment at-

tachment writs that petitioners obtained

without notice or a hearing. The only

Significant issue on appeal was the ap-

propriate statute of limitations to bor-

row from the Alabama Code. 763 F.2d 1250

(CAll 1985). The Eleventh Circuit ex-

plained that its task of applying Wilson

v. Garcia, supra, was complicated by the

fact that Alabama has not one but two

personal injury statutes of limitations.

Alabama Code § 6-2-34(1) governs actions

for “any trespass to person or liberty,

such as false imprisonment or assault and

battery," and has been interpreted by the

Alabama courts as applying to actions for

trespass. Ala. Code § 6-2-39(a) (5)

governs "[a]ctions for any injury to the

App. 48

person or rights of another not arising

from contract and not specifically enume-

rated in this section," and has been in-

terpreted by the Alabama courts as ap-

plying to actions for trespass on the

case. The Eleventh Circuit resolved its

seeming dilemma in applying Wilson

v. Garcia by reasoning that while not all

§ 1983 actions involve trespass, trespass

is "the particular type of wrong that was

most paradigmatic, the one category of

wrongs that the legislators [who enacted

§ 1983] intended first and foremost to

address." 763 F.2d, at 1255. According-

ly, the court held that the six-year sta-

tute of limitations provided by § 6-2-

34(1), rather than the then one-year sta-

tute of limitations provided by § 6-2-

39(a) (5), should govern § 1983 actions in

Alabama .=—

App. 49

The Eleventh Circuit's decision in

this case conflicts with three en banc

decisions by the United States Court of

Appeals for the Tenth Circuit, all of

which were companion cases to the deci-

sion we affirmed in Wilson v. Garcia,

supra. In Hamilton v. City of Overland

Supra

Park, Kansas, 730 F.2d 613 (CA1O 1984)

(en banc), cert. denied. __—siU.S.

(1985), the Tenth Circuit rejected, for

§ 1983 purposes, use of the one-year Kan-

sas statute of limitations governing

"[aJn action for assault, battery, mali-

cious prosecution, or false imprison-

ment," and instead chose the two-year li-

mitations period for "[a]n action for in-

jury to the rights of another, not aris-

ing on a contract, and not herein enume-

rated."

’

;

ay *- a ——

7 _ =

ee . ee a ee — —_- < -

— an a ee gi Re ea te ete eo ee ee ee =

— aes ie et ee eS oe ee SS ee

wetbe Spates

App. 50

In Mismah v. Murray City, 730 F.2d 1366

(CA10 1984) (en banc), cert. denied,

U.S. (1985), the Tenth Circuit

Similarly rejected use of the one-year

Utah statute of limitations governing

"[a]n action for libel, slander, assault,

battery, false imprisonment, or

seduction," and, in the absence of an

express Utah statute of limitations

governing actions for injury to- the

rights of another, opted for the four-

year limitations period for "[a]n acton

for relief not otherwise provided by

law." Finally, in McKay v. Hammock, 730

F.2d 1367 (CA1O 1984) (en banc), a case

in which certiorari was not sought, the

Tenth Circuit noted that Colorado had

distinct statutes of limitations for ac-

tions for trespass (one year) and tres-

pass on the case (six years), and, find-

- =

ee ee ee ee | fine £0 snd,

App. 51

ing the distinction between trespass and

case irrelevant to § 1983, opted instead

to use the residuary three-year period

for “f{aJll cther actions of every kind

for which no other period of limitation

is provided by law.”

As the foregoing cases demonstrate,

the Tenth Circuit finds it inappropriate

to borrow for § 1983 purposes a statute

of limitations governing common-law tres-

passes, preferring instead to look “or a

statute more compatible with its charac-

terization of a § 1983 action as "in es-

sence an action for injury to personal

rights." Garcia v. Wilson, 731 F.2d 640,

651 (1984), affirmed, U.S. ° The

conflict between the Tenth and Eleveth

circuits is evidenced with particular

Clarity in Hamilton, supra, where’ the

statutes of limitations chosen and

ee ee ee an Pee eo

ore

Hp ly ION ts bed at

App. 52

rejected are virtual mirror images of the

statutes of limitations chosen and

rejected in this case.

The conflict regarding the appro-

priate criteria for chosing a statute of

limitations for § 1983 actions is not li-

mited to the Tenth and Eleventh Circuit,

expressly following the Eleventh's Cir-

cuit's decision in this case, rejected a

six-year Mississippi residuary statute of

limitations which governs negligence and

strict liability personal injury actions

in that state, and instead decided that

§ 1983 cases should be governed by the

one-year statute of limitations period

governing "most, if not all, common-law

intentional torts.” Id. at 919. Gates

v. Spinks is worth noting, not only be-

cause it is clearly inconsistent with the

Tenth Circuit's decision in Mismah

App. 53

v. Murray City, supra, but also because

)

it highlights an effect of following the

Eleventh Circuit's decision in this case

which is not obvious from the present de-

cision: The § 1983 statute of limita-

tions will as a rule be shorter if based

on a statute of limitations governing in-

tentional torts than it would if based on

a more general statute of limitations

governing other personal injury

actions.2/

It will not do to argue, as respon-

dent does in his Brief in Opposition to

Certiorari, that no conflict is possible

because each state statutory scheme is

sui generis. Id., at 5- 8. It is con-

flicting principles, not variations in

State statutory schemes, that have deter-

mined the statutes of limitations chosen

for § 1983 actions in the Tenth Circuit

—e oe Ss —-

App. 54

on the one hand and the Fifth and Ele-

venth Circuits on the other.

The conflict between the circuits

presented by this case is not likely to

disappear without guidance from this

Court .2/ While the Tenth Circuit's cha-

racterization of a § 1983 action as one

for injury to personal rights is arguably

somewhat different from the personal in-

jury characterization we adopted in Wil-

son v. Garcia, supra, it seems doubtful

that the Tenth Circuit will soon overrule

its en banc decisions in Hamilton, supra,

and Mismah, supra, in view of the fact

that we denied certiorari in those cases

after Wilson v. Garcia was decided. Had

we considered those decisions inconsis-

tent with Wilson, our normal course would

have been to grant certiorari in order to

vacate the decision below and remand for

ma aa 2

App. 55

reconsideration in light of Wilson.

Since we did not see fit to call for the

Tenth Circuit to reconsider those deci-

Sions, it is predictable that it will ad-

here to them, notwithstanding the con-

flicting decisions by the Eleventh and

Fifth Circuits.

It is clear to me that the Court

should provide further guidance to _ the

lower courts on the issue here presented,

and I see no benefit in delaying its re-

solution. While I understand the Court's

reluctance to return so quickly to the

issue that we had hoped to lay to rest in

Wilson v. Garcia, supra, I must respect-

fully dissent.

ea et yee

2 Poe, ron La ae

App. 56

APPENDIX B FOOTNOTES

i/ Section 6-2-39(a)(5) mow provides a

two-year statute of limitations, pursuant

to an amendment enacted in January 1985.

as The following is a sampling, which

does not purport to be exhaustive, of

statute of limitations akin to those at

issue in the present case. For each

state, the first, longer statute of limi-

tations governs actions described in lan-

guage virtually identical to Ala. Code

§ 6-2-39(a) (5), and the second, shorter

statute of limitations governs all of the

following intentional torts: libel,

slander, assualt, battery, and false im-

prisonment. Minn. Stat. §§ 541.05 (6

years); N.C. Gen. Stat. §§ 1-52(5) (3

years), 1-54 (3) (1 year);

Okla. Stat. Tit. 12 §§ 95 (Third) (2

years), 95 (Fourth) (1 year); S.C. Code

§§ 15-3-530 (5) (6 years), 15-3-550(1) (2

years).

3/ Uniformity could also be achieved,

of course, by Congressional enactment of

a uniform period of limitations’ for

§ 1983 actions. That course has much to

commend it, but it is unacceptable, in my

view, to delay resolving a conflict among

the circuits in the hopes that Congress

will intervene.

? a

’

—

24) Fae

ey 7

‘ si

+ -_

Te ieee

Saree

Cad eo ie bs

aL Ws)

(is say

} App. 57

APPENDIX C

Samuel JONES, Jr., Plaintiff-Appellant,

: Ve.

PREUIT & MAULDIN, a partnership

composed of E.F. Mauldin, individual-

ly, and E.F. Mauldin as Executor or

Administrator of the Estate of Leonard

Preuit, Deceased; E.F. Mauldin; E.F.

Mauldin as Executor or Administrator

of the Estate of Leonard Preuit, De-

ceased; and Preuit Mauldin, Defend-

ants-Appellees.

No. 86-7415.

United States Court of Appeals,

Eleventh Circuit.

Feb. 2, 1987.

Debtor brought’ civil rights

action based on allegations’ that

there were constitutional violations

inherent in Alabama attachment pro-

cedure. The United States District

Court for the Northern District of

Alabama, Northwestern Division, 586

App. 58

William M. Acker, Jr., J., dis-

missed. On debtor's appeal the

Court of Appeals, 763 F.2d 1250,

reversed and remanded. On remand,

the District Court, 634 F.Supp.

1520, entered summary judgment in

favor of creditors, and debtor ap-

pealed. The Court of Appeals, John-

son, Circuit Judge, held that: (1)

fact issue as to whether additional

procedures allegedly followed by

creditors in attaching debtor's

cotton pickers satisfied demands of

due process precluded summary judg-

ment; (2) fact issue as to whether

creditors knew or should have known

that Alabama attachment statute vio-

lated clearly established constitu-

tional rights precluded summary

judgment as to creditors' claim of

ee ee a Pe ee ee eer ae ee ae reans eee, ree ed a

LARA se CA nthe eT Set Abt mga NEN, ntl tet A Pian CAME Be ot

£ SAAB A NS Botte vem

nts

aiemin

App. 59

good faith immunity; (3) debtor did

not waive right to claim violation

of due process; and (4) doctrine of

Claim preclusion did not bar deb-

tor's action.

Affirmed in part and reversed

in part.

l. Federal Courts

When reviewing appeal from

final judgment, Court of Appeals can

review rulings on previous. inter-

locutory orders. 28 U.S.C.A. §

1292(a); Fed.Rules Civ.Proc. Rule

54(b), 28 U.S.C.A.

2. Federal Courts

Plaintiff could raise denial of

his motion for partial summary judg-

ment after filing proper notice of

appeal from order granting summary

judgment in favor of defendants. 28

Se ee ee Sie rc MO i a Me ee

ame AR, et ns

ee ee ee

App. 60

U.S.C.A. 5 1292(a); Fed.Rules

Civ.Proc. Rule 54(b), 28 U.S.C.A.

3. Federal Civil Procedure

Fact issue as to whether addi-

tional procedures allegedly followed

by creditors in attaching debtor's

cotton pickers satisfied demands of

due process precluded summary judg-

ment in debtor's action challenging

constitutionality of Alabama attach-

ment statute decided before case

holding that constitutionality of

attachment statute depends upon sta-

tutorily mandated procedures and not

upon procedures actually used.

Ala.Code 1975, §§ 35-11-5, 35-1l1l-

110, 35-11-1111; U.S.C.A.

Const.Amend. 14.

4. Civil Rights

Creditors' seizure of debtor's

cotton pickers without notice under

ee A Ee Oy

Te I ly el age tt

ee te ll A ae

App. 61

Alabama's mechanic's lien statute

occurred pursuant to established

state policy, so that relief was

available to debtor under federal

civil rights statute. 42 U.S.C.A. §

1983; U.S.C.A. Const.Amend. 14;

Ala.Rules Civ.Proc., Rule 64(a),

(b); Ala.Code 1975 §§ 6-6-43, 6-6-

45, 6-6-256, 35-11-110, 35-1l1l-1l1l.

5. Civil Rights

Private defendants in a federal

civil rights action seeking damages

on account of unconstitutional

attachment are entitled to qualify

immunity if they either knew nor

reasonably should have known that

the attachments violated clearly

established constitutional rights.

42 U.S.C.A. § 1983.

at Ae Nac Rina Bg ea Rahal fas ih oA ath D shales

6. Civil Rights

If immunity was firmly esta-

blished in common law when Congress

enacted federal civil rights statute

and if strong policy reasons’ sup-

ported its continued use, immunity

is available under the statute; how-

ever, courts cannot engraft new im-

munities onto the statute, nor can

courts recognize traditional immuni-

ties that eviscerate statute's poli-

cies. 42 U.S.C.A. § 1983.

4 Federal Civil Procedure

Fact issue as to whether credi-

tors who attached debtor's cotton

pickers knew or should have’ known

that Alabama attachment statute vio-

lated clearly established constitu-

tional right precluded summary judg-

ment as to creditors' claim of good-

’

pay " PTo a 7 " : —— 7 ne ny ——— - “ aw

ae, ek a ee Lee ae oS — a a ee ge wien a =e i eae . Snel pei 7 ~ ee —

= os = —— ——— ~ . a As ps = = _ ~- a a

. i Oe ie tg a pe Rn AE ee a wie ee S al eae ey ay, 8 a bh aa i SPS rt 1b ~

App. 63

faith immunity in debtor's’ civil

rights action. Ala.Rules Civ.

Proc., Rule 64(a); Ala.Code 1975, §§

35-11-110, 35-ll-1lll; 42 U.S.C.A. §

1983.

8. Civil Rights

Debtor did not waive right to

claim violation of due process fol-

lowing attachment of his’ cotton

pickers without notice or hearing,

based on his alleged failure to uti-

lize pretaking and posttaking reme-

dies, where no pretaking procedures

were available to debtor under Ala-

bama law, and deprivation occurred

as result of established state

policy. Ala.Code 1975, § 35-1ll-

Llis Ala.Rules Civ.Proc., Rule

64(a); 42 U.S.C.A. § 1983.

9. Civil Rights

‘

>a os - * mrs ee oe — , = me ow men - ee a + _—— i ee =.

ae id Sel oe a ae ues a ae a 5 = .e a pe | om ‘ ———— Ld fr loa Nir pint ane el aa

App. 64

Party's failure to request

available pretaking hearing consti-

tutes waiver and precludes relief

under federal civil rights statute

for deprivation of property. 42

U.S.C.A. § 1983.

10. Civil Rights

Action under federal civil

rights statute in federal court is

precluded if issues involved in

action could have been raised in

prior state court proceeding.

11. Federal Courts

In determining preclusive

effect of state court proceeding,

Court of Appeals must accord that

proceeding same preclusive effect it

would have under state law.

12. Judgment

Alabama law requires presence

of four elements for there to be

App. 65

claim preclusion: prior judgment

rendered by court of competent jur-

isdiction; Substantially identical

parties in both suits; prior judg-

ment rendered on the merits; and

same cause of action in both suits.

13. Judgment

If all four elements of claim

preclusion are present under Alabama

law, prior judgment precludes subse-

quent litigation on same cause of

action, including any issues’ that

were not but could have been liti-

gated in prior proceeding.

14. Judgment

Doctrine of claim preclusion

did not bar debtor's civil rights

action challenging attachment of his

cotton pickers, despite availability

of motion under Alabama law seeking

red

App. 66

forfeiture of one of bonds posted by

creditors; to obtain relief under

Alabama law, debtor was required to

show that attachment violated provi-

sions of attachment statute while to

obtain relief under federal civil

rights statute he was required to

demonstrate that it did not violate

provisions of attachment statute.

42 U.S.C.A. 5 1983; Ala.Rules

Civ.Proc., Rule 65-1; Ala.Code 1975,

§ 6-6-45.

15. Judgement

Debtor's failure to raise claim

for damages under federal civil

rights statute as counterclaim in

State court attachment proceedings

did not preclude his federal civil

rights action challenging the

attachment; claim was not compulsory

— ee ee eee

App. 67

counterclaim. 42 U.S.C.A. § 1983;

Ala.Rules Civ.Proc., Rule 65.1;

Ala.Code 1975, § 6-6-148.

16. Judgment

Failure to raise claim as coun-

terclaim precludes subsequent suit

on that claim only if claim is con-

sidered to compulsory counterclaim.

17. Attachment

Under Alabama law, to obtain

damages on a count of wrongful

attachment, debtor can either bring

independent suit under federal civil

rights statute or file motion seek-

ing forfeiture of bonds in original

proceeding. 42 U.S.C.A. § 1983;

Ala.Rules Civ.Proc., Rule 65.1;

Ala.Code 1975, § 6-6-148.

18. Set-Off and Counterclaim

Claim for damages for wrongful

attachment is not compulsory coun-

App. 68

terclaim in proceeding in which

attachment was effected.

Burr & Forman, C.V. Stelzen-

muller, F.A. Flowers, III, Birming-

ham, Ala., plaintiff-appellant.

Potts, Young, Blasingame & Put-

nam, T. Michael Putnam, Florence,

Ala., Ronald C. Forehand, Asst.

Atty. Gen. for State of Ala., Mont-

gomery, Ala., for de fendants-

appellees.

Appeal from the United States

District Court for the Northern Dis-

trict of Alabama.

Before HILL and JOHNSON, Cir-

cuit Judges, and ESCHBACH', Senior

Circuit Judge.

JOHNSON, Circuit Judge:

This case involves an appeal by

the plaintiff from an order denying

his motion for partiai summary judg-

ment and another order granting the

defendants' motion for summary judg-

ment. Wwe affirm the district

court's denial of plaintiff's motion

for partial summary judgment but

reverse its order granting summary

judgment in favor of the defendants.

BACKGROUND

Samuel Jones, the plaintiff,

owned three International Harvester

cotton pickers. In 1981, Jones

employed Preuit & Mauldin ("P & M")

to repair these pickers. P & M was

a partnership composed of Edward

Mauldin individually and _ in his

Capacity as the executor of the

estate of Leonard Preuit. P-2

agreed to let Jones pay his repair

bill after the 1981 fall harvest.

However, Jones also owed money to

the Farmer's Home Administration

("FHA"), and the checks he received

for the cotton he picked that fall

App. 70

were made out jointly to him and the

FHA. Because the FHA refused to let

Jones keep any of the proceeds, he

was unable to pay the money he owed

P & M.

P & M not having been paid,

Leonard Preuit Mauldin, the son of

Edward Mauldin and an employee of P

& M, consulted with David Martin, an

attorney. Upon Martin's advice, P &

M filed three separate suits in

State court - one for each picker -

and obtained a writ of attachment

for each picker. These writs were

issued, and the pickers were seized,

without any notice to Jones. The

pickers were sold to P & M at a ju-

dicial sale in satisfaction of the

judgments P & M eventually obtained

against Jones in the state court

actions.

ss)

—.

ce Pe a

9 a eae

ees Sa eee

App. 71

Jones then filed this action

under 42 U.S.C.A. § 1983 against P &

M, Edward Mauldin, both individually

and in his capacity as the executor

of Leonard Preuit's estate, and

Leonard Mauldin, alleging that the

prejudgment seizure of his’ cotton

pickers without notice violated his

rights under the due process clause

of the Fourteenth Amendment. Jones

sought $200,000 in compensatory

damages and a like amount in puni-

tive damages plus’~ costs. The

district court, 586 F.Supp. 1563,

Originally dismissed the suit on the

grounds that the claim was barred by

a one year statute of limitations.

Another panel of this Court reversed

that ruling, holding that a six year

staute of limitations applied, and

i ae -

=i em Be a,

5h eet iN er

er ey ee ee

A Naish BLANDIT delice 208 Wiest ae

fe ith Aha Tat Rei Madtl as

pila

App. 72

remanded the case for further pro-

ceedings. 763 F.2d 1250 (llth Cir.

1985).

On remand and after the close

of discovery, Jones filed a motion

for partial summary judgment seeking

a declaratory judgment that certain

provisions of the Alabama attachment

Statute were unconstitutional. The

defendants filed a motion for sum-

mary judgment as well, requesting

the court to dismiss the case on a

number of grounds. The court denied

Jones's motion and granted the de-

fendants' motion. 634 F.Supp. 1520.

This appeal followed.

DISCUSSION

A. CONSTITUTIONALITY OF ALABAMA

ATTACHMENT STATUTE

[1-3] Jones argues that’ the

district court erred in refusing to

App. 73

grant him partial summary judgment

on the issue whether Ala.Code §§ 35-

11-5, -110, and -11ll were unconsti-

tutional.2/ The denial of a motion

for summary judgment will be

reversed only for an abuse of dis-

cretion. Johnson v. Bryant, 671

F.2d 1276, 1279 (llth Cir. 1982).

In the state court actions P & M

sought the enforcement of mechanic's

liens against the cotton pickers,

thus the writs of attachment were

issued under Section 35-ll-1ll.

However, the defendants seemingly

maintained before the district court

that they had voluntarily followed

procedures not mandated by the sta-

tute. These additional procedures

allegedly satisfied the demands of

due process. Jones did not supply

ee ee ee ee ee eos

ee ee eee ee ares

App. 74

any material with his motion rebutt-

ing the defendants’ allegation.

Furthermore, the Supreme Court did

not hold until nearly a year later

in Lugar v. Edmondson Oil Co., 457

U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d

482 (1982), that the constitutiona-

lity of an attachment statute

depends upon the statutorily-

mandated procedures and not upon the

procedures actually used. Given

both the undeveloped facts and the

state of the law at the time, we

cannot say that the district court

abused its discretion in denying

Jones's motion for partial summary

judgment.

B. APPLICATION OF PARRATT Vv.

TAYLOR

[4] In awarding summary judg-

ment in favor of the defendants, the

App. 75

district court found that Section

1983 relief was unavailable under

the rule of Parratt v. Taylor, 451

U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d

420 (1981). In Parratt, the Supreme

Court held that a negligent depri-

vation of property that did not

occur pursuant to an estabiished

state procedure does not violate the

due process clause of the Fourteenth

Amendment if the state provides an

adequate post-deprivation remedy.

Ever since Hudson v. Palmer, 468

U.S. 517, 530-36, 104 S.Ct. 3194,

3202-05, 82 L.Ed.2d 393 (1984), this

rule applies to intentional depriva-

tions of property as well. However,

Hudson did not eliminate the

requirement that the deprivation not

occur pursuant to an established

26 Nore ta Reena Cabs eae lt ae

App. 76

state procedure. Therefore, if an

intentional deprivation of property

occurs pursuant to an established

state policy, Parratt does not

apply. Logan v. Zimmerman’ Brush

Co., 455 U.S. 422, 435-36, 102 S.Ct.

1148, 1157-58, 71 L.Ed. 2d 265

(1982).

In seizing the cotton pickers

without a hearing, P & M did act

pursuant to an established state

procedure. Ala.R.Civ.P. 64(a) pro-

vides for pre-judgment seizures in

actions for money damages "for the

purpose of securing satisfaction of

the judgment ultimately to be

entered in the action...." Rule

64(a) does not specify any proce-

dures but states merely that such

seizures shall occur "under the cir-

e Py Ne a ere

bP nS AES Bc Ci Nat A ith Saha RE Ot 2a Sachi

App. 77

cumstances and in the manner pro-

vided by law...." Thus, whether P &

M effected the seizures pursuant to

an established state procedure

depends upon the requirements of the

particular attachment provisions on

which P & M relied.

As previously indicated, P & M

relied upon Alabama's mechanic's

lien provisions. Ala.Code § 35-1ll-

110 (1975) creates a lien in favor

of a repairman against any vehicle

he repaired. Ala.Code § 35-11-111

(1975) provides for the enforcement

of such a lien by attachment upon

the execution of a bond "as in other

cases of attachment" and the making

of an affidavit stating only that a

mechanic's lien exists, that’ the

amount owed for the repairs is due

ta A he anc RA pS orto Re Cala lane ele ees shi RS,

App. 78

and unpaid, and that the attachment

is not sued out for purposes of

harassment. No pre-taking notice is

required, and the affidavit need not

state that a risk of destruction or

concealment of the vehicle exists.

Nor do the provisions of the general

attachment statute incorporated by

reference into Section 35-11-111

make any mention of a pre-taking

hearing. Ala.Code §§ 6-6-43 and -45

(1975).

The defendants point to

Ala.R.Civ.P. 64(b) which requires a

hearing before the issuance of a

writ of attachment unless the court

determines that there exists a risk

of concealment, transfer or harm to

the property. Because P & M's af-

fidavit did not aver such a risk,

App. 79

they argue that the seizure of the

cotton pickers without any pretaking

hearing contravened Rule 64(b) and

therefore did not occur pursuant to

an establsihed state policy.

However, Rule 64(b) applies

only to actions in detinue and to

actions "whereby the owner of a se-

curity interest in personal property

seeks to recover possession of said

personal property prior to

judgment...." P & M's actions did

not fall into either category. De-

tinue is an action for the recovery

of personal property wrongfully

detained. Ivery v. Verbeck, 461

So.2d 813, 815-16 (Ala.Civ.App.

1984); Ala.Code § 6-6-256 (1975). P

& M sought payment on repair bills;

therefore, its actions were in debt,

ee es

a Ss ee ee 7 | eee Oe ee

ee =. a

“a

. — a Po

ee pn eel ay etn hfe eS ewe yy ot ey 7 ee el *

ee, Se est 7 Aap .

‘ a awed —~—_——— —

ee a ah : S rex a 7

i, = ~~ ce Qt - 4 i ~- <,-

: : - a * Saar => Her se Le a

a ~ if ae — a a 7 Md

J ; - bs - 7 oe, —_ » ¢ —~ te ae —

y = a f _

~ - “ 3 : se hs i “i -

» he ~ —

App. 80

a ss

not detinue. Foshee v. General

Telephone Company of the Southeast,

295 Ala. 70, 322 80.24 715, 717

(1975). Nor did P & M's actions

satisfy the second category, for P &

ES ieee ret ons) Saar Sot a ne meee ens

M lacked an enforceable security in-

terest in the cotton pickers. A se-

curity interest is not enforceable

and does not attach unless either

the secured party is in possession

of the collateral or the debtor has

signed a security agreement’ that

contains a description of the colla-

teral. Ala.Code § 7-9-203 (1975).

P & M had neither possession of the

cotton pickers nor a security agree-

ment signed by Jones. Therefore, P

& M could not have proceeded under

Rule 64(b). Furthermore, P & M's

affidavits and the state court's

ae names ae

- ne) a?

Ne i ee

App. 81

findings recite the language

required by Sections 35-11-110 and

6-6-43 and not that required by Rule

64(b), confirming that P & M was

acting pursuant to Rule 64(a). Cf.

Ex parte Martin, 412 So.2d 815, 817

(Ala.Civ.App. 1982) (enforcement of

statutory landlord's lien falls

within Rule 64(a) and not (b)).

Therefore, the seizure of the cotton

pickers without notice occurred pur-

suant to an established state

policy, and Parratt does not apply.

Cc. QUALIFIED IMMUNITY

[5] In granting the defendants

summary judgment, the district court

also relied on the fact that P & M

had acted in good faith reliance on

a statute that was not clearly

unconstitutional. The propriety of

App. 82

that finding depends upon whether

private defendants in a Section

1983 suit seeking damages on account

of an unconstitutional attachment

are entitled to qualified immunity.

The Supreme Court has expressly re-

served this question. Lugar, 457

U.S. at 942 n. 23, 102 S.Ct. at 2756

n. 23. However, two circuits have

held that private defendants’ are

entitled to such immunity if they

neither knew nor reasonably should

have known that the attachments vio-

lated clearly established constitu-

tional rights. Buller v. Buechler,

706 F.2d 844, 850-53 (8th Cir.

1983); Folsom Investment Co. Vv.

Moore, 681 F.2d 1032, 1037-38 (5th

Cir. Unit A 1982). But see Howerton

v. Gabica, 708 F.2d 380, 385 n. 10

* “ai

te, a ee i r : ve “; 7 ~ ey =

2 Re f 1 it ae gm oa 7 -— = =

SS oe es eum ass 2 a oe eee ee ft er |e

App. 83

(9th Cir. 1983) (private defendants

not entitled to good faith immunity

under Section 1983). We agree with

the analyses of the Fifth and Eighth

Circuits and hold that such immunity

for private parties exists. How-

ever, because the defendants here

failed to demonstrate clearly their

good faith, the district court erred

in awarding them summary judgment.

[6] Section 1983 provides that

every person who, acting under color

of state law, deprives another per-

son of a constitutional right is

liable to that person for damages. 2/

On its face, Section 1983 admits of

no immunities. Imbler v. Pachtman,

424 U.S. 409, 417, 96 S.Ct. 984,

988, 47 L.Ed.2d 128 (1976). None-

theless, the Supreme Court has rea-

anak’ GA Mey Nea dees See

App. 84

soned that in enacting Section 1983,

Congress did not intend to supplant

traditional immunities embedded in

the common law. Therefore, if an

immunity was firmly established in

the common law when Congress enacted

Section 1983 and if strong policy

reasons support its continued use,

the immunity is available under Sec-

tion 1983. Owen v. City of Indepen-

dence, 445 U.S. 622, 637-38, 100

S.Ct. 1398, 1408-09, 63 L.Ed.2d 673

(1980); Pierson v. Ray, 386 U.S.

547, 554-55, 87 S.Ct. 1233, 1217-18,

18 L.Ed.2d 288 (1967). However, the

courts cannot engraft new immunities

onto the statute. Tower v. Glover,

467 U.S. 914, 922-23, 104 S.Ct.

2820, 2826, 81 L.Ed.2d 758 (1984).

Nor can the courts recognize tradi-

ee cape cme = . - . ” wf s

a RI Ene oT enc Sm MS et i ab Sa WS . i 3

SO ig NP een rom aad e = a rae ae it ys ee 7” ¥: » cP, “ * J a

App. 85

tional immunities that eviscerate

the policies of Section 1983. New-

port v. Fact Concerts, Inc., 453

U.S. 247, 258-59, 101 S.Ct. 2748,

2755, 69 L.Ed.2d 616 (1981). The

good faith immunity that the defen-

dants claim here satisfies both cri-

teria and is therefore cognizable in

this suit.

At the time of Section 1983's

enactment, the common law tort of

malicious prosecution made action-

able the wrongful institution of

attachment proceedings. Some juris-

dictions even had an_ independent

tort of wrongful attachment. How-

ever, a person was not liable under

either tort unless he commenced the

attachment with malice and without

probable cause. Buller, 706 F.2d at

ee ee ee

App. 86

851; Folsom Investmnet Co., 681 F.2d

at 1038. See also W. Prosser, Hand-

book of the Law of Torts, § 120 (4th

Ed. 1971). Although such defenses

technically are not immunities,

Section 1983 "should be read against

the background of tort liability

that makes a man responsible for the

natural consequences of his

actions." Monroe v. Pape, 365 U.S.

167, 187, 81 S.Ct. 473, 484, 5

L.Ed.2d 492 (1961). Thus, in Pier-

son, 386 U.S. at 555-57, 87 S.Ct. at

1218-19, the Supreme court held that

a police officer was entitled to im-

munity under Section 1983 if he

arrested someone under ae statute

that he in good faith believed to be

valid even though it was later held

unconstitutional. Because a police

App. 87

officer was not liable under the

common law for false arrest or false

imprisonment if he acted in good

faith and with probable cause, he

was entitled to a good faith immuity

under Section 1983. See also Wood

v. Strickland, 420 U.S. 308, 318-19,

95 S.Ct. 992, 999, 43 L.Ed.2d 214

(1975) (that public school officials

liable under state tort law for ma-

licious acts only establishes good

faith immunity under Section 1983.

Likewise, the availability of simi-

lar defenses in actions for mali-

cious prosecution and wrongful

attachment establishes the histori-

cal precedent for recognizing good

faith immunity here.

In addition, strong policy rea-

sons justify the recognition of good

App. 88

faith immunity for private parties

in these circumstances. The most

compelling justification is that a

person should not be penalized for

resorting to the courts in order to

enforce rights he in good faith be-

lieved he possessed. Buller, 706

F.2d at 851; Folsom Investment Co.,

681 F.2d at 1038. Such immunity

would not impair deterrence of un-

lawful conduct because persons who

seek an attachment that they know or

reasonably should know violates

Clearly established constitutional

and statutory rights would remain

liable. Buller, 706 F.2d at 85l.

In Downs v. Sawtelle, 574 F.2d

l, 15-16 (lst Cir.), cert. denied,

439 U.S. 910, 99 S.Ct. 278, 58

L.Ed.2d 255 (1978), a case involving

App. 89

an involuntary sterilization, the

court refused to accord good faith

immunity to private parties acting

in concert with state officials.

The court observed that public offi-

cers receive such immunity because

otherwise few people would be will-

ing to serve in government. Because

private citizens are not in an ana-

logous position, the court reasoned

that they are not entitled to a

Similar immunity. Because ~ the

Supreme Court has adopted a "“fun-

ctional" rather than a "derivative" ‘.

approach to immunities, see Harlow

v. Fitzgerald, 457 U.S. 800, 808-11,

102 S.Ct. 2727, 2732-34, 73 L.Ed.2d

396 (1982); Dennis v. Sparks, 449

U.S. 24, 28-32, 101 S.Ct. 183, 186-

88, 66 L.Ed.2d 185 (1980), the court

Sa gee Soft a arn ny

| a ae ~~ re4 ; .—

7 afte

App. 90

in Downs was correct in holding that

a private defendant is not entitled

to immunity simply because the state

officials with whom he acts in con-

cert receive immunity. However, a

private defendant should not_ be

denied immunity simply because he is

not in the same position as_ those

state officials. Instead, the court

should determine under the particu-

lars of each case whether the common

law traditionally extended immunity

to private parties and whether the

recognition of that immunity is con-

sistent with the goals of Section

1983. ™Tn this case the defendants

are not seeking any derivative immu-

nity but claim the good faith immu-

nity allowed them in their own right

under common law. Thus, Downs does

not command a different result.

App. 91

[7] Although the defendants

are entitled to assert a claim of

good faith immunity, the record

fails to show that they are entitled

to summary judgment. In determining

whether a party moving for summary

judgment has shown the absence of a

genuine dispute as to any material

fact, this Court must independently

assess the record in the light most

favorable to the nonmoving party.

Morrison v. Washington County, Ala-

bama, 700 F.2d 678, 682 (llth Cir.),

cert. denied, 464 U.S. 864, 104

§.ct. 195, 78 L.Bd.2€ 171 (1983).

Having reviewed the record under

that standard, we cannot say that no

genuine dispute exists as to whether

the defendants knew or should have

Known that the attachment’ statute

App. 92

relied on here violated a clearly

established constitutional right.

Admittedly, the defendants are

entitled to immunity if their con-

duct did not contravene a clearly

established constitutional right;

however, the defendants bear’ the

burden of proving that any right

they violated was not clearly esta-

blished. Harlow, 457 U.S. at 808,

102 S.Ct. at 2732. In support of

their Claim of immunity, the defen-

dants point to the fact that, at the

time of the seizure, no published

opinion had held the attachment sta-

tute they relied on unconstitutio-

nal, and that Mitchell v. W.T. Grant

Co., 416 U.S. 600, 94 S.Ct. 1895, 40

L.Ed.2d 406 (1974), in which the Su-

preme Court upheld a garnishment

Deen ee

App. 93

statute, had muddled the standards

for a constitutional attachment.

Nonetheless, numerous cases prior to

the attachments here indicated the

constitutional invalidity of an

attachment without notice absent a

risk of immediate harm. North Geor-

gia Finishing, Inc. v. Di-Chen,

Inc., 419 U.S. 601, 605-08, 95 S.Ct.

719, 721-23, 42 L.Ed.2d 751 (1975);

Fuentes v. Shevin, 407 U.S. 67, 80-

L.Ed.2d 555 (1972); Sniadach v. Fa-

mily Finance Corporation oof Bay

View, 355 U.S. 337, 338-42, | S.Ct.

1820, 1821-23, 23 L.Ed. 2d 349

(1969). In fact, in Mitchell, 416

although the attachment had occurred

without any notice or hearing, the

App. 94

creditor had shown a risk of

concealment. Also, in an

unpublished opinion issued six

months prior to the attachments by P

& M, the Alabama attachment statute

at issue here had ben declared

unconstitutional, the court stating

that the statute's unconstitutiona-

lity was obvious. Wiggins Vv.

Roberts, No. 75-M-1760, slip op.

(N.D.Ala.1978). Even assuming

arguendo that private defendants

cannot reasonably be held account-

able for unpublished opinions,

Wiggins nonetheless indicates that

the defendants should have known on

the basis of Di-Chem, Fuentes, and

Sniadach that an attachment without

notice was unconstitutional.

Furthermore, the defendants obtained

App. 95

the assistance of a lawyer who

should have explained to them the

import of these holdings.2/

The defendants also argue that

at the time of the seizures here the

Supreme Court had never held that

private defendants were liable for

damages under Section 1983 on

account of an unconstitutional

attachment. However, Di-Chen,

Mitchell, Fuentes, and Sniadach all

implicitly held that a creditor's

reliance on an attachment statute

was state action; otherwise, the

Court mever would have reached the

due process question. In fact, in

Fuentes the judgment ran against

both the creditor and the state of-

ficials. Although Fuentes involved

only declaratory and injunctive

App. 96

relief, nothing in Fuentes suggested

that the outcome would have been

different if the debtor had asked

for damages. See also Adickes v.

S.H. Kress & Co., 398 U.S. 144, 150-

52, 90 S.Ct. 1598, 1604-05, 26

L.Ed.2d 142 (1970) (private party's

joint participation with state offi-

cial in a conspiracy constituted

state action allowing damages under

Section 1983). Although the defen-

dants' argument raises a close ques-

tion, any doubt as to the existence

of a genuine issue of material fact

must be resolved against the moving

party. Hayden v. First National

Bank of Mr. Pleasant, Texas, 595

F.2d 994, 996-97 (5th Cir. 1979).

Consequently we cannot say that the

defendants have satisfied their bur-

App. 97

den and shown that their conduct did

not violate a clearly established

constitutional right.

D. WAIVER

[8] The district court also

found that Jones had waived his

right to claim a violation of due

process because he had failed to

utilize available pre-taking and

post-taking remedies. A week before

the seizure, two deputies inspected

the pickers at Jones's farm.

Furthermore, a week passed between

the time the sheriff seized the

first picker and the time he seized

the remaining’ two. During this

interlude Jones consulted with a

lawyer; however, Jones did not

Challenge the writs of attachment

until nearly eighteen months after

the seizures. Thus, the court con-

cluded, Jones had an opportunity to

interpose a pre-seizure objection,

and his failure to do so, combined

with his failure to make a prompt

post-taking objection, constituted a

Knowing and voluntary waiver of his

due process rights.

[9] A party's failure to

request an available pre-taking

hearing constitutes a waiver and

precludes relief under section 1983

for the deprivation of property.

Grandison v. Smith, 779 F.2d 637

641-42 (llth Cir.1986). However, no

Waiver occurred here because there

were no pre-taking procedures avail-

able to Jones. Neither Section 35-

11-111 nor Rule 64(a) establishes

any pre-taking procedures for chal-

App. 99

lenging the issuance of writs of at-

tachment. Therefore, Jones had no

pre-deprivation rights he could have

waived.

Nor can the fact that Jones

waited eighteen months before making

any formal post-taking challenge

constitute a waiver of his_- pre-

taking rights to due process.

Furthermore, in Logan v. Zimmerman

Brush Co., 455 U.S. 422, i102 S.Ct.

1148, 71 UL.Ed.2d 265 1982), the

Supreme Court held that, if a depri-

vation without prior notice or

hearing occurred as the result of an

established state policy, the avail-

ability of post-deprivation state

remedies did not bar the availabi-

lity of a Section 1983 action. As

previously indicated, the seizure of

App. 100

Jones's cotton pickers without

notice or hearing occurred pursuant

to an established state policy.

Therefore, the district court's

holding that Jones's failure to

invoke promptly the state's post-

taking remedies constitutes a waiver

contravenes the holding in Logan.

Consequently, we find that Jones did

not waive his rights to due process.

E. RES JUDICATA

[10-13] The district court

found also that this suit was barred

because Jones could have raised his

Section 1983 claim in his motion

under Ala.R.Civ.P. 65.1 in state

court seeking the forfeiture of one

of the bonds posted by P & M. See

Allen v. McCurry, 449 U.S. 90, 94-

105, 101 §.Ct. 41l, 414-20, 66

App. 101

L.Ed. 2d 308 (1980) (suits for

damages under Section 1983 collater-

ally estopped by motion to suppress

in state criminal proceeding). An

action under Section 1983 in federal

court is precluded if the issue

involved in the action could have

been raised in a prior state court

proceeding. Migra v. Warren City

School District Board of Education,

465 U.S. 75, 80-85, 104 S.Ct. 892,

895-98, 79 L.Ed.2d 45 (1984). How-

ever, in determining the preclusive

effect of a state court proceeding,

this Court must accord that proceed-

ing the same preclusive effect it

would have under state law. Marrese

v. American Academy of Orthopaedic

Surgeons, 470 U.S. 373, 379-82, 105

S.Ct. 1327, 1331-33, 84 L.Ed.2d 274

App. 102

(1985); Kremer v. Chemical Construc-

tion corp., 456 U.S. 461, 481-82,

102 S.Ct. 1883, 1897-98, 72 L.Ed.2d

262 (1982). Alabama law requires

the presence of four elements for

there to be claim preclusion: 1) a

prior judgment rendered by a court

of competent jurisdiction; 2) sub-

stantially identical parties in both

suits; 3) a prior judgment rendered

on the merits; and 4) the same cause

of action in both suits. Missildine

v. Avondale Mills, Inc., 415 So.2d

1040, 1042 (Ala.1981). If all four

of these elements are present, the

prior judgment precludes subsequent

litigation on the same cause of

action, including any issues that

were not but could have been liti-

gated in the prior proceeding. Rus-

App. 103

sell v. Russell, 404 So.2d 662, 664

(Ala.1981).

{14) Claim preclusion does not

exist here because Rule 65.1 and

Section 1983 do not present the same

cause of action. Under Alabama law,

a cause of action in one case is the

same as that in another case if the

evidence needed to sustain the

second action would also have sus-

tained the first action. Buck Creek

Industries, Inc. v. Alcon Construc-

tion, Inc., 631 F.2d 75, 78 (5th

Cir.1980); Gulf American Fire &

Casualty Co. v. Johnson, 209 So.2d

212, 218 (Ala.1968). When a credi-

tor obtains a writ of attachment, he

must post a bond for damages in case

of a wrongful attachment. Ala.Code

§ €-6-45 (1975). Rule 65.1 al.ows

App. 104

the debtor to enforce the surety's

liability on that bond if the

attachment was wrongful. However,

the inquiry under Rule 65.1 concerns

only whether any of the statutory

grounds for swearing out a writ of

attachment exists. If the attach-

ment satisfies the statutory

requirements, relief under Rule 65.1

is available. Painter v. Munn, 117

Ala. 322, 23 So. 83, 86-87 (1897).

In contrast, relief under Section

1983 is available here only if the

attachment occurred pursuant to an

established state procedure. See

Parratt, 451 U.S. at 541, 101 S.Ct.

at 1916. Therefore, to obtain

relief under Rule 65.1 the debtor

must show that the attachment vio-

lated the provisions of the attach-

App. 105

ment statute while to obtain relief

under Section 1983 he must demon-

strate that it did not violate the

provisions of ; the attachment

statute. Such diametrically opposed

requirements prevent their treatment

as the same cause of action.

[15-18] Nor is this action

precluded because Jones’ failed to

raise his claim for damages’ under

Section 1983 as a counterclaim in

the state court proceedings. The

failure to raise a claim as a coun-

terclaim precludes a subsequent suit

on that claim only if the claim is

considered to be a compulsory

counterclaim. Eatman v. Goodson, 36

Ala.App. 360, 58 So.2d 129, 132-33

(1951), cert. denied, 257 Ala. 239,

58 So. 2d 133 (1952); Weaver Vv.

App. 106

Brown, 87 Ala. 533 6 So. 354 (1888).

Ala.Code § 6-6-148 {1975) creates an

independent cause of action for

wrongful attachments and allows the

recovery of compensatory and puni-

tive damages. Thus, to obtain da-

mages on account of a- wrongful

attachment, a debtor can either

bring an independent suit under that

section of file a Rule 65.1 motion

in the original proceeding. State

v. Chandler, 460 So.2d 1302, 1304

(Ala.Civ.App. 1984). Therefore, a

Claim for damages for a wrongful

attachment is not a compulsory coun-

terclaim in the proceeding in which

the attachment was effected. Conse-

quently, Jones's claim for damages

under Section 1983 is not barred.

Accordingly, the district

court's order denying Jones's motion

App. 107

for partial summary judgment is

AFFIRMED. The order granting sum-

mary judgment in favor of the defen-

dants is REVERSED.

App. 108

APPENDIX C FOOTNOTES

Honorable Jesse E. Eschbach,

Senior U.S. Circuit Judge for the

Seventh Circuit, sitting by designa-

tion.

i/ The defendants contend that

Jones failed to appeal the order

denying his motion for partial sum-

mary judgment. That contention is

meritless. The denial of a motion

for partial summary judgment is an

interlocutory order. Because the

court did not make that order appea-

lable under either 28 U.S.C.A. §

1292(a) or Fed.R.Civ.P. 54(b), Jones

could not have appealed that order

when it was entered. However, when

reviewing an appeal from ae final

judgment, this court can-~ review

rulings on- previous’ interlocutory

orders. Aaro, Inc. v. Daewoo Inter-

national (America) Corp., 755 F.2d

1398, 1400 (llth Cir. 1985). Jones

filed a proper notice of appeal from

the court's order granting summary

judgment in favor of the defendants;

therefore, Jones can raise the den-

ial of his motion for partial sum-

mary judgment in this appeal.

On the other hand, the defen-

dants' argument that, if the attach-

ment statute is unconstitutional,

Jones is entitled only to nominal

damages cannot be addressed in this

appeal. That issue was not

presented in either the defendants’

or Jones's motion for summary judg-

App. 109

ment, thus the defendants cannot

raise it now.

2/ The statute provides that:

Every person who, under color

of any statute, ordinance, re-

gulation, custom, or usage, of

any State or Territory, sub-

jects, or causes to be sub-

jected, any citizen of the

United States or other person

within the jurisdiction thereof

to the deprivation of any

rights, privileges, or

immunities secured by the Con-

stitution and laws, shall _ be

liable to the party injured in

an action at law, suit in

equity, or other proceeding for

redress.

42 U.S.C.A. § 1983.

P & M and Edward Mauldin contend

that summary judgment should be granted

in their favor because only Leonard Maul-

din and Sherman Crisler, P & M's general

manager, were involvd in obtaining the

writs of attachment. In fact Edward

Mauldin stated that he was totally un-

aware that Leonard Mauldin and Crisler

had obtained the writs until the seizures

had been completed. Whether corporations

are vicariously liable under Section 1983

for the acts of their employees is an un-

settled question. Compare Iskander v.

Village of Forest Park, 690 F.2d 126,

128-29 (7th Cir.1982) (private employers

not vicariously liable), with Croy v.

——

Sg Ages taco

— =~

App. 110

Skinner, 410 F.Supp. 117, 123 (N.D.GA.

1976) (private employers vicariously

liable). However, even though municipa-

lities generally are not’ vicariously

liable under Section 1983 for the acts of

their employees, see Monell v. Depoart-

ment of Social Services, 436 U.S. 658,

691-95, 98 §.Ct. 2018, 2036-38, 56

L.Ed.2d 611 (1978), they can be liable

for even the single act of a policy-

making individual. Pembaur v. City of

Cincinnati, U.S. _, 106 S.Ct. 1292,

1297-99, 89 L.Ed.2d 452 (1986); City of

Oklahoma city v. Tuttle, 471 U.S. 808,

105 $.Ct. ’ _ ’ 85 L.Ed.2d 791

(1985). Therefore, corporations too may

be liable for the actions of policy-

making employees. The record supports

the view that Leonard Mauldin and Sherman

Crisler were key management personnel of

P & M and that their actions in seizing

the cotton pickers constituted the policy

of P & M. Therefore, liability can be

attributed to P & M and to Edward Mauldin

as a general partner of P & M. Further-

more, both P & M and Edward Mauldin rati-

fied the attachment by accepting its

benefits. Thus, they can be held liable

under Section 1983.

App. 1ll

APPENDIX D

Samuel JONES, Jr.,

Plaintiff-Appellant

PREUIT & MAULDIN,

a partnership, composed of

E. F. Mauldin, individually, and

E. F. Mauldin, as Executor

or Administrator of the Estate

of Leonard Preuit, Deceased;

E. F. Mauldin;

E. F. Mauldin as Executor or

Administrator of the Estate

of Leonard Preuit, deceased; and

Preuit Mauldin,

Defendants-Appellees.

No. 86-7415.

United States Court of Appeals,

Eleventh Circuit

July 24, 1987.

Debtor whose property was attached

by private creditors brought suit against

Creditors for damages under § 1983. The

United States District court for the Nor-

thern District of Alabama, No. CV84-AR-

5131-NW, William M. Acker, Jr., J., 586

App. 112

F. Supp. 1563, dismissed. The Court of

Appeals, 763 F.2d 1250, reversed and re-

manded, and the District Court, 634

F. Supp. 1520, entered summary judgment

in favor of creditors. On appeals, the

Court of Appeals, 808 F.2d 1435, affirmed

in part and reversed in part. On peti-

tion for rehearing and suggestion for re-

hearing en banc, the Court of Appeals,

Hill, Circuit Judge, held

that: (1) creditors were immune from

damages insofar as attachment of debtor's

property without hearing pursuant to Ala-

bama statute may have violated debtor's

constitutional rights; (2) complaint

that employee of private creditors at-

tempted to "rig" judicial sale of deb-

tor's attached property failed to show

State action and thus to state § 1983

Claim; and (3) debtor lacked standing to

App. 113

challenge portion of Alabama's attachment

statute authorizing nonjudicial officer

to issue writ of attachment.

Affirmed.

Johnson, Circuit Judge, filed a dis-

senting opinion.

1. Officers and Public Employees _

Whether statutory or constitutional

right was clearly established at time

that alleged wrong was committed, and

thus whether government officials are en-

titled to qualified immunity, is question

of law to be decided by court.

2. Civil Rights

Where constitutioanl deprivation oc-

Curred as result of established state po-

licy, availability of postdeprivation

State remedy does not bar availablity of

§ 1983 action. 42 U.S.C.A. § 1983.

App. 114

3. Civil Rights

Private creditors did not violate

debtor's constitutional rights, as known

to reasonable person at time, and were

immune from damages for attachment of

debtor's property without hearing pru-

suant to Alabama statute; creditors pre-

‘sented sworn affidavit indicating that

attachment was used in response to speci-

fic debt for labor and materials, state

judge issued writ and retained judicial

control of process from beginning to end,

service of order of attachment and com-

plaint to enforce mechanic's lien was

made upon debtor in lawful manner, credi-

tors posted bond to minimize risk that ex

parte procedure would lead to wrongful

taking, and state law gave creditor post-

deprivation opportunity to challenge at-

tachment in timely manner. Ala. Code

1975, § 35-ll-11ll; 42 U.S.C.A. § 1983.

App. 115

4. Civil Rights

Complaint that employee of private

creditors attempted to "rig" judicial

sale of debtor's attached property failed

to show state action and thus to state

§ 1983 claim; neither complaint nor any

document filed in district court asserted

that action allegedly undertaken by pri-

vate creditors’ employee to dissuade an-

other - potential bidder from bidding on

attached property was undertaken in col-

lusion with any state official who was

overseeing sale. 42 U.S.C.A. § 1983.

5. Constitutional Law

Debtor whose property was attached

lacked standing to challenge, as consti-

tutional, portion of Alabama's attachment

Statute authorizing nonjudicial officer

to issue writ of attachment, as judge is-

sued writ in debtor's case, not clerk, so

App. 116

that debtor was not adversely affected by

that part of statute. Ala. Code 1975,

§ 6-6-148.

Appeal from the United States Dis-

trict Court for the Northern District of

Alabama.

ON PETITION FOR REHEARING

Before HILL and JOHNSON, Circuit

Judges, and ESCHBACH , Senior Circuit

Judge.

HILL, Circuit Judge:

The defendants, Preuit & Mauldin

("P & M"); E. F. Mauldin, both indivi-

dually and in his capacity as admini-

Sstrator of the estate of Leonard Preuit;

and Preuit Mauldin, petition for a re-

hearing en banc of this panel's opinion

in Jones v. Previt & Mauldin, 808 F.2d

1435 (llth Cir. 1987).24 Although they

App. 117

do not seek a reconsideration of the pa-

nel opinion, we treat their petition as

such in accordance with Eleventh Circuit

Rule 26(£) and Rule V.C.b(1) of our In-

ternal Operating Procedures. 2/ See Lewis

v. Hillsboro Transit Authority, 726 F.2d

668, 669 (llth Cir. 1984).

In their petition, the defendants

seek reconsideration of our holding that

they are not entitled to qualified immu-

nity. On rehearing, we reaffirm our

holding that private defendants are en-

titled to qualified immunity in section

1983 suits seeking damages on account of

unconstitutional attachments. However,

we modify our holding that the defendants

here have not demonstrated that they are

entitled to summary judgment on a claim

of qualified immunity. Therefore, except

for the statement of facts and our dis-

App. 118

cussion regarding the availability of

qualified immunity to private defendants

in the circumstances presented here (that

portion of the opinion encompassed by

headnotes 5 and 6 at pages 1440-42, our

prior opinion is vacated and the follow-

ing discussion is substituted in its

place.

[1] We now address whether the de-

fendants here are entitled to prevail on

their claim of qualified immunity. In

Harlow v. Fitzgerald, 457 U.S. 800, 818-

19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396

(1982), the Supreme Court promulgated an

objective standard for determining

whether government officials, generally

Shielded from liability for civil da-

mages, were entitled to qualified im-

munity in a particular case. The court

held that such officials are, "shielded

App. 119

from liability for damages insofar as

their conduct does not violate clearly

established statutory or constitutional

rights of which a reasonable person would

n3/

have known. As Harlow's emphasis on

objective criteria suggests, the question

of whether a statutory or constitutional

right was clearly established at the time

that the alleged wrong was committed is a

question of law to be determined by the

court. Mitchell v. Forsyth, 472

U.S. 511, 5236, 528 n. 9, 105 S.Ct. 2806,

2815-2816 n. 9, 86 L.Ed.2d 411 (1985);

Joseph v. Brierton, 739 F.2d 1244, 1249

(7th Cir. 1984); Czurlanis vv. Albanese,

721 F.2d 98, 108 and n. 8 (3d Cir. 1983);

Trejo v. Perez, 693 F.2d 482, 488 (5th

Cir. 1982). The appellants are thus en-

titled to de novo review on this issue.

App. 120

Here the right at issue is a deb-

tor's right to due process when his pro-

perty is attached by a private creditor

pursuant to state statute. Mr. Jones

claims that in 1982 he had a clearly es-

tablished right to notice and a hearing

before the attachment of his property.

We now analyze the relevant Supreme Court

cases on this issue to determine whether

this assertion is correct.

We turn first to Sniadach v. Family

Finance Corporation of Bay View, 395

U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349

(1969). In that case, the Supreme Court

Struck down a Wisconsin statute which

authorized the prejudgment garnishment of

wages, which the court noted were "a spe-

Cialized type of property presenting dis-

tinct problems in our economic system."

395 U.S. at 340, 89 S.Ct. at 1822. The

App. 121

suing creditor could garnish the debtor's

wages without demonstrating a lien or

prior interest in the property attached,

and the attachment could be accomplished

without judicial supervision. Holding

that these no were inadequate,

the court found the statute unconstitu-

tional for failure to provide pregarnish-

ment notice and hearing to the debtor.

In its next treatment of this issue,

a seven member court invalidated the rep-

levin statute of Florida and Pennsyl-

vania, which statutes authorized the sel-

‘ars of goods to obtain repossession of

their wares "without judicial order, ap-

proval or participation." The writ of

replevin could be issued by a court clerk

on "the bare assertion of the party seek-

ing the writ that he is entitled to one."

Fuentes v. Shevin, 407 U.S. 67, 74, 92

App. 122

S.Ct. 1983, 1991, 32 L.Ed.2d 556 (1972).

The court found both statutes further

flawed because the only post-deprivation

remedy granted to the debtor was the

eventual opportunity to be heard as the

defendant should the creditor commence an

action to determine his rights to repos-

session. In light of these procedural

inadequacies the court declared both sta-

tutes unconstitutional.

However, in Mitchell v. W.T. Grant

Co., 416 U.S. 600, 94 S.Ct. 1895, 40

L.Ed.2d 406 (1974), the court upheld a

Louisiana sequestration statute which did

not require that the debtor receive pre-

Seizure notice or hearing. The Mitchell

court determined that when the debtor is

provided with a variety of procedural

safeguards which protect his interests, a

sequestration or attachment statute is

App. 123

not facially unconstitutional because it

does not provide for preseizure notice or

hearing. The court distinguished the

Louisiana sequestration statute from

those invalidated in Sniadach and Fuentes

on several different grounds. First,

under Louisiana state a writ of seques-

tration was available only to a creditor

with a mortgage or lien in the property.

Second, the statute authorized the writ,

"only when the nature of the claim and

the amount thereof, if any, and the

grounds relied upon for the issuance of

the writ clearly appear from specific

facts" shown by a verified petition or

affidavit. Mitchell, 416 U.S. at 616, 94

S.Ct. at 1904. Further, in the specific

district at issue, this requisite showing

had to be made to a judge, so that

"Mitchell was not at the unsupervised

App. 124

mercy of the creditor and court function-

aries." Id. The statute provided for,

"judicial control of the process from be-

ginning to end.” Id. In addition, the

statute provided that, “the defendant

[debtor] by contradictory motion may ob-

tain the dissolution of a writ of attach-

ment or of sequestration, unless’- the

plaintiff proves the grounds upon which

the writ was issued." Id. at 622, 94

S.Ct. at 1907. The Supreme Court inter-

preted this provision as allowing for an

immediate hearing to determine whether

the writ was wrongfully issued. Id. at

618, 94 S.Ct. at 1905. Finally, the deb-

tor was protected by a provision in the

Statute which allowed for damages for the

wrongful issuance of a writ, and for at-

torney's fees, “whether the writ is dis-

solved on motion or after trial on the

merits." Id. at 617, 94 S.Ct. at 1905.

App. 125

The final link in this’ chain of

cases came in the court's next term, when

it invalidated a Georgia attachment sta-

tute which did not prove some of the pro-

cedural safeguards approved in Mitchell.

The Georgia statute allowed a creditor to

garnish property, absent a _bond, via a

writ of garnishment issued by a court

clerk, with no guarantee that the writ

could be challenged unless the debtor

could file a bond to protect the plain-

tiff creditor. North Georgia Finishing,

Inc. v. Di-Chem, Inc., 419 U.S. 601, 607,

$95 8.Ct. 719, 722, 42 &.BA.24 751 (1974).

The court in Di-Chem again reviewed those

saleguards which had enabled the Louis-

iana statute in Mitchell to comport with

the requirements of due process. It

noted that under the Louisiana statute

the creditor had a lien or prior interest

App. 126

in the property; filed a bond to obtain

the writ, was required to submit an affi-

davit, "clearly setting out the facts en-

titling the creditor to seek sequestra-

tion" to a judge; and was entitled to "an

immediate hearing after seizure and to

dissolution of the writ absent proof by

the creditor of the grounds on which the

writ was issued." Di-Chem, 419 U.S. at

607, 95 S.Ct. at 722.4/ Finding these

protections lacking, the court declared

the Georgia garnishment statute unconsti-

tutional, for failure to provide prede-

privation notice and hearing.

Having carefully examined the

Supreme Court pronouncement in this area,

we cannot say as a matter of law that at

the time Mr. Jones' cotton pickers were

seized, a debtor was entitled to presei-

zure notice and hearing in all instances

App. 127

of prejudgment attachment. Thus, we can-

not say that the single fact that no pre-

seizure hearing occurred means that the

defendants here forfeit any claim to qua-

lified immunity.

However, it is clear that by 1982

Supreme Court precedent had granted deb-

tors certain clearly established due pro-

cess rights upon the attachment of their

property. By 1982 the fifth circuit had

already determined that Mitchell and Di-

Chem required that a prejudgment seizure

be authorized by a judge who has discre-

tion to deny issuance of the appropriate

writ. Johnson v. American Credit Company

of Georgia, 581 F.2d 526, 533-35 (5th

Circ. 1978) .2/ Similarly, two readily ap-

parent common threads run through all of

the Supreme Court decisions outlined

~bove. First, a debtor must be given the

App. 128

opportunity to challenge the seizure in a

prompt manner. Second, his financial in-

terest must be protected in the event of

a wrongful prejudgment attachment, either

via the posting of a bond by the creditor

who seeks the writ, or by allowing an ac-

tion for damages suffered as a result of

a wrongful attachment. Thus, while a

right to a preseizure hearing was not

"clearly established" by 1982, a reason-

able person would have known that an at-

tachment accomplished without the three

procedural safeguards mentioned above was

Clearly unconstitutional.

Now we must determine whether the

appellant's conduct violated these

Clearly established constitutional stan-

dards. After reviewing the record, and

construing the facts in the light most

favorable to Mr. Jones, we must conclude

App. 129

that the actions of Preuit & Mauldin did

not violate those rights of Mr. Jones

which were clearly established at the

time of seizure of his cotton pickers

took place. P & M's actions were commen-

surate with the protections that were ap-

proved as adequate due process in Mitch-

e11.2/ First, P & M presented a sworn

affidavit specifying the specific facts

entitling P & M to an attachment of each

picker. The affidavit indicated that

Mr. Jones was justly indebted to P & M in

a specific amount for labor and material

furnished to a specific cotton picker;

that Mr. Jones had failed to pay for the

repairs after lawful demand; and that the

attachment was not sued out for the

purpose of vexing or harassing the deb-

tor. Second, a state judge issued the

writ, and retained "judicial control of

App. 130

the process from beginning to end."

Mitchell, 416 U.S. at 616, 94 S.Ct. at

1904. Third, the record indicates that

service of the order of attachment and

the complaint to enforce P & M's mecha-

nic's lien was made upon Mr. Jones in a

lawful manner. Fourth, P & M posted a

bond, “to minimize the risk that the ex

parte procedure [would] lead to a wrong-

ful taking." Id. at 617, 94 S.Ct. at

1905. Finally, Alabama law gave

Mr. Jones on opportunity to challenge the

attachment in a timely manner .£/ Thus,

P & M's actions were not clearly uncon-

stitutional, and the appellees are

entitled to immunity from damages.

Appellants dispute the notion that

Alabama law afforded Mr. Jones a reason-

ably prompt opportunity to challenge the

attachment after execution of the writ.

App. 131

We find that such a right did exist. As

previously noted, P & M relied upon Ala-

bama's mechanic's lien provisions in ob-

taining the writ of attachment. Alabama

Code § 35-11-110 (1975) creates a lien in

favor of a repairman against any vehicle

he repairs. Alabama Code § 35-11-111

(1975) provides that any person entitled

to a mechanic's lien may enforce it by

obtaining a writ of attachment. Other

than requiring a bond and an affidavit,

§ 35-ll-1lli does not lay out the proce-

dure for obtaining the writ, however.

The actual procedures for attachment are

set out in a separate section of the Ala-

bama Code, 6-6-40 et seq.2/ As the dis-

trict court noted, Ala. Code § 6-6-148

provides that:

At any time within three

years of the suing out of the

attachment, before or after the

action is determined, the de-

App. 132

fendant in attachment may com-

mence an action on the attach-

ment bond and may recover such

damages as he has actually sus-

tained if the attachment was

wrongfully sued out and, if

sued out maliciously as well as

wrongfully, the jury may, in

addition, give vindictive da-

mages.

An action to challenge the attachment un-

der section 6-6-148 may be brought by the

debtor before, during, or after the

action in which the debtor appears as a

defendant. First National Bank v. Che-

ney, 120 Ala. 117, 23 So. 733 (1898);

Liversage v. Gibson, 222 Ala. 672, 133

So. 715 (1931) .22/

The only limitation with this remedy

is that it only allows a debtor to chal-

lenge a "wrongful" attachment. However,

in that sense it is exactly like the

post-seizure remedy which was approved by

the Supreme Court as_ constitutionally

adequate in Mitchell. In Louisiana,

App. 133

also, the debtor could challenge the writ

"by contradictory motion unless the

plaintiff proves the grounds upon which

the writ was issued." [emphasis sup-

plied]. This clearly allows only the op-

portunity to challenge wrongful attach-

ment. In fact, the Alabama remedy is

broader in that requiring the debtor to

challenge the writ “by contradictory mo-

tion" may mean that the debtor may only

do so while he is a defendant in the ac-

tion brought by his creditor. Alabama

provides a separate cause of action to

the debtor, which may be used before, du-

ring, or after the action brought by the

creditor .2)/

Of course, in this case Mr. Jones

failed to avail himself of this opportu-

nity to challenge the attachment. How-

ever, the fact that he did not avail hinm-

App. 134

self of the opportunity given to him

under Alabama law does not effect our

analysis. In the context of deciding

whether these defendants were entitled to

qualified immunity, we are deciding

whether or not their actions were clearly

unconstitutional. They did not obtain a

writ under a statute which provided no

opportunity to challenge the writ.

Therefore, their actions did not violate

this aspect of the debtor's constitutio-

nal rights .22/

[2] We hasten to point out that

outside this context, the availability or

nonavailibilty of a post deprivation re-

medy is only relevant to a section 1983

action where the deprivation takes place

pursuant to a “random, unauthorized act,"

such that the complaint fails to state a

Claim under Parratt v. Taylor, 451

App. 135

U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420

(1981) and its progeny. Where, as here,

the deprivation occurred as the result of

an established state policy, the availa-

bility of the post-deprivation- state

remedy does not bar the availability of é

section 1983 action. Logan v. Zimmerman

Brush Co., 455 U.S. 422, 102 S.Ct. 1148,

71 L.Ed.2d 265 (1982). Thus, in this

case, while the existence of a post-

deprivation remedy does not act to bar

Mr. Jones’ section 1983 action, the exis-

tence of a post-deprivaton remedy, in

this context, helps to establish that the

defendants are entitled to qualified im-

munity .23/

[3] To conclude, we find that

P & M's actions did not violate clearly

established constitutional rights of

which a reasonable person would have

App. 136

14/

known .— They are thus entitled to im-

munity from damages insofar as the sei-

zure of Mr. Jones' cotton pickers without

a hearing pursuant to Alabama Code § 35-

ll-1ll may have violated Mr. Jones‘ con-

stitutional rights.

[4] However, Mr. Jones‘ contentions

do not rest solely on Preuit & Mauldin's

invocation of Alabama's prejudgment at-

tachment statute. He also claims, and

this claim is supported by an affidavit

of someone claiming to be an eyewitness,

that an employee of Preuit & Mauldin at-

tempted to "rig" the judicial sale which

was held after Preuit & Mauldin obtained

a default judgment against Mr. Jones for

the money owed them for repairs on the

cotton pickers. This claim, on its face,

is wholly separate from any contention

that the Alabama attachment law is uncon-

App. 137

stitutional, or that Preuit & Mauldin's

actions in obtaining a writ of attachment

were unconstitutioanl. However, this se-

parate, unidentified claim suffers from a

fatal flaw. As the Supreme Court made

clear in Lugar v. Edmondson Oil Co., 457

U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482

(1982):

[Under § 1983] the party

charged with deprivation must

be a person who may fairly be

said to be a state actor. fThis

may be because he is a state

official, because he has acted

together with or has obtained

significant aid from state of-

ficials, or because his conduct

is otherwise chargeable to the

State.

457 U.S. at 937, 102 S.Ct. at 2754.

Neither the complaint nor any docu-

ment filed in district court asserts that

the action allegedly undertaken by the

employee of Preuit & Mauldin to dissuade

another potential bidder from bidding on

App. 138

the cotton pickers was undertaken in col-

lusion with any state official who was

overseeing the sale. Indeed, there is no

assertion at all that the P & M employee

who allegedly undertook to "rig” the sale

was acting pursuant to, or under. the

color of, state law. Thus, this claim

was also corrrectly dismissed by the dis-

trict court for failure to meet the most

basic requisites of a 1983 action .22/

Finally, we turn to Mr. Jones' con-

tention that the district court abused

its discretion in failing to declare Ala-

bama's attachment statute unconstitutio-

nal on its face. The denial of a motion

for summary judgment will be reversed

only for an abuse of discretion. Johnson

v. Bryant, 671 F.2d 1276, 1279 £=(1ilth

Cir. 1982). The statute is constitutio-

nally adequate in that it requires the

App. 139

posting of a bond, Ala. Code §§ 6-6-45,

35-1l1-111, and because it affords an op-

portunity to challenge the writ, § 6-6-

148. However, in the face of Johnson's

holding that a writ of attachment must be

issued by a judicial officer with autho-

rity to deny the writ, 581 F.2d at 534,

Alabama's attachment statute may be con-

stitutionally suspect to the degree that

§ 6-6-43 authorizes a nonjudicial officer

to issue a writ of at tachment .22/

[5] Nonetheless, in this case a

judge issued the writ, not ae clerk.

Thus, P & M was not acting under, and

Mr. Jones was not adversely affected by,

that part of tte statute which may be un-

constitutional. Hence, Jones’~ lacks

standing to challenge that aspect of the

law, and we do not hold it invalia.2/

When a plaintiff is seeking a declaratory

App. 140

judgment that a state statute is uncon-

stitutional, the requirements for

standing must be strictly enforced. See

Griswold v. Connecticut, 381 U.S. 479,

481, 85 S.Ct. 1678, 1679, 14 L.Ed.2d 510

(1965). Nor do P & M forfeit their qua-

lified immunity because a separate clause

of the attachment statute may pose con-

stitutional concerns.22/

In light of the foregoing discus-

sion, we find the appellees were entitled

to qualified immunity. On that basis the

judgment of the district court is

AFFIRMED.

JOHNSON, Circuit Judge, dissenting:

I agree with that majority's holding

that Jones was entitled to preseizure no-

tice and hearing only if P & M obtained

the writs of attachment through a proce-

dure that lacked the safeguards outlined

App. 141

in Mitchell v. W.T. Grant COce 416

U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406

(1974). In Mitchell, the Supreme Court

held that preseizure notice and hearing

is not required if, in order to obtain a

writ of attachment, the creditor must

file an affidavit setting forth the spe-

cific facts entitling him to relief; if

the creditor must post a bond to compen-

sate the debtor for any damages resulting

from a wrongful attachment; if the writ

of attachment can be issued only by a

judge with discretion to deny the writ;

and, if the debtor is entitled to an im-

mediate postseizure hearing at which the

Creditor must prove his entitlement to

the writ. I disagree, however, with the

majority's conclusion that those _ safe-

guards were present here. Specifically,

I believe that the judge who issued the

App. 142

writ was not vested with sufficient dis-

cretion to satisfy the dictates of Mitch-

ell. Therefore, I would hold that Jones

was entitled to preseizure notice and

hearing and thus that the attachments

violated his clearly established consti-

tutional rights.

The judge who issued the writs of

attachment here could not inquire into

the veracity of P & M's allegations. As

the majority indicates, the attachments

here were obtained under Alabama's mecha-

nic's lien statute. Alabama Code § 35-

11-1110 creates a lien in favor of a re-

pairmen against any vehicle he -‘epairs,

and Alabama Code § 35-1l1-111 outlines the

procedures for enforcing that lien, by at-

tachment. Although Section 35-1ll-1lll re-

quires both the filing of an affidavit

setting forth the plaintiff's entitlement

App. 143

to relief and the posting of a bond pay-

able to the defendant in case of a wrong-

ful attachment, that section does not

specify who is authorized to issue the

writ. Instead, it provides only that the

writ is to be issued "by any officer au-

thorized to issue such writs.” Id.

Therefore, in order to determine who can

issue such a writ and what discretion the

issuing officer possesses, resort must be

had to the provision of Alabama's general

attachment statute. Those provisions au-

thorize a circuit court judge to issue a

writ of attachment. Ala. Code § 6-6-43.

However, nothing in those provisions au-

thorizes a circuit court judge to go be-

hind a creditor's allegations in order to

determine their validity. In actions in-

volving either the seizure of property

under the detinue statute or the enforce-

App. 144

ment of a security interest,

Ala. R. Civ. P. 64(b) mandates a judicial

inquiry into the facts supporting the

need for an attachment without prior no-

tice. However, both Rule 64 and its Com-

mittee Comments indicate that the special

procedures established therein apply only

to actions in detinue or in enforcement

of a security interest and that those

procedures are in addition to the proce-

dures required under the general attach-

ment statute.+/ Consequently, in issuing

a writ of attachment under Section 35-1l-

lll, the circuit court judge's function

is solely to determine the adequacy of

the plaintiff's allegations. If the

facts as alleged would entitle the

plaintiff to relief, the judge must issue

the writ. He cannot determine whether

the allegations are in fact true.

App. 145

Such limited "discretion" fails to

provide the meaningful judicial partici-

pation contemplated in Mitchell. The

safeguards outlined in Mitchell are a

substitute for prior notice and hearing

because, like preseizure notice, they

protect debtors against “abuse by credi-

tors without valid claims." 416 U.S. at

614. Therefore, judicial participation

in issuing a writ of attachment does not

provide a substitute for preseizure no-

tice unless that participation helps "mi-

nimize the risk that the ex parte proce-

dure will lead to a wrongful taking.”

Id. at 617, 94 S.Ct. at 1905. Judicial

participation does not meaningfully re-

duce the risk of wrongful attachment un-

less the judge can, if necessary, inquire

into the truthfulness of the creditors

allegations. Otherwise the judge's in-

App. 146

volvement would amount to nothing more

than the very type of ministerial deter-

mination that the Supreme Court has

struck down as insufficient to provide

due process when performed by a clerk.

See North Georgia Finishing, Inc. Vv. Di-

Chem, Inc., 419 U.S. 601, 95 S.Ct. 719,

42 L.Ed.2d 751 (1975). This is not to

say, however, that a judge must put every

creditor to his proof or that a crditor,

prior to issuance of a writ of attach-

ment, must prove his claim by a prepon-

derance of the evidence. Rather, the

judge must possess the ability, in the

exercise of his discretion, to require

more proof from the creditor than the

creditor's affidavit in deciding whether

to issue a writ of attachment without out

prior notice to the debtor. For example,

oe ts 5 PY ——_ 7 |

+. — a

— eS eS ee - —

S a tee - a . 7 -

SS aor Sa cg, Oy Sere ago) a neces ed

App. 147

wish to examine the documents giving rise

to the creditor's interest in the

property. If such proof is not forth-

coming, the judge should be able to deny

issuing the writ until the debtor is pro-

vided notice and an opportunity for a

hearing.

The majority reads Mitchell as re-

quiring no more from the judge than that

he determine the facial sufficiency of

the allegations. They base their reading

on the ground that the state sequestra-

tion statute upheld in that case allowed

the judge to issue the writ "only when

the nature of the claim and the amount

thereof, if any, and the grounds relied

upon for the issuance of the writ clearly

appear from specific facts shown by veri-

fied petition or affidavit." 416 U.S. at

616, 94 S.Ct. at 1904. However, nothing

App. 148

in that statute prohibited the court from

requiring additional proof. Furthermore,

the Court emphasized in Mitchell that a

preseizure hearing was unnecessary be-

cause the issues involved in that case --

the existence of a vendor's lien and the

purchaser's default -- were particularly

suited for documentary proof. Id. at

617-18, 94 S.Ct. at 1905. That a claim

is amenable to documentary proof helps

reduce the risk of a wrongful attachment

only if the court issuing the writ can

examine any supporting documents. There-

fore, I do not read Mitchell as narrowly

as the majority does. Consequently, I

believe that the attachments here vio-

lated Jones's clearly established consti-

tutional rights. Furthermore, I adhere

to the remainder of the original panel

opinion and believe that the award of

App. 149

summary judgment in favor of the defen-

dants should be reversed.

App. 150

APPENDIX D FOOTNOTES

Honorable Jesse E. Eschbach, Senior

U.S. Circuit Judge for the Seventh Cir-

cuit, sitting by designation.

1/ The facts of this case are set out

in the panel opinion Jones v. Preuvit &

Mauldin, 808 F.2d 1435 (llth Cir. 1987).

s/ Eleventh Circuit Rule 26(f) pro-

vides:

A suggestion for rehearing en

banc will also be treated as a

petition for rehearing before

the original panel.

Rule V.C.b(1) of our Internal Operating

Procedures provides:

The panel has control P.H.C. -

although a copy of the sug-

gestion for rehearing en banc

is distributed to each panel

judge and every active judge of

the court, the filing of a sug-

gestion for rehearing en banc

does not take the case out of

plenary control of the panel

deciding the case. The panel

may, on its own, grant rehear-

ing and may do so- without

action by the full court.

a The court further held that, once it

is determined that the right was clearly

established, "if the official pleading

the [qualified immunity] defensive claims

extraordinary circumstances and can prove

that he neither knew or should have known

of the relevant legal standard, the de-

App. 151

fense should be sustained. But again,

the defense would turn primarily on ob-

jective factors.”

This seems to allow a small margin

of subjectivity in “extraordinary circum-

stances." The court did not attempt to

define what “extraordinary circumstances"

it had in mind. However, we do not fnd

the subjectivity element relevant here,

as seeking a writ of attachment is not

normally a “extraordinary” event.

4/ The opinion of the court in Di-Chem

was a four-justice pluarlity. Justice

Powell concurred in the judgment,

explaining that,

I am not in accord with

the Court's suggestion that the

Due Process Clause might

require that a judicial officer

issue the writ of

garnishment. .. . When conm-

bined with the availability of

the garnishor's bond to compen-

sate for any harm caused, the

possibility of prompt correc-

tion of possible error suffices

to satisfy the requirement of

procedural due process in this

context.

Id., 419 U.S. at 611, n. 3, 95 S.Ct. at

725, n. 3 (Powell, J., concurring).

Thus, the opinion produced a majo-

rity which felt that the posting of a

bond and the opportunity to initiate a

prompt post seizure hearing were essen-

tial requirements of due process.

App. 152

3/ The Eleventh Circuit has adopted as

precedent all decisions of the forner

Fifth Circuit rendered prior to October

1, 1981. Bonnor v. City of Prichard, 661

F.2d 1206, 1209 (llth Cir. 1983).

&/ On this issue also, because we are

reviewing an order granting summary judg-

ment, we must independently review the

facts relied uon by the district court in

determining that qualified immunity was

available. Morrison Vv. Washington

County, Alabama, 700 F.2d 678 (11th Cir.

1983).

y In evaluating P & M's conduct, we

are concerned only with whether their

action were clearly unconstitutional with

respect to the prejudgment seizure of the

cotton pickers. This harmed Mr. Jones

only insofar as he lost use of the

pickers prior to judgment. The ultimate,

permanent loss of the pickers occurred

pursuant to a judicial sale undertaken to

execute a lawfully entered default judg-

ment. The prejudgment seizure is not re-

lated to the ultimate loss. Section 35-

11-111 allows one with a mechanic's lien

to obtain a writ of attachment. A.R.C.P.

64(a) authorizes a prejudgment attach-

ment, “for the purpose of securing satis-

faction of the judgment ultimately to be

entered ir the action... ." However,

there is ne reason why P & M could not

have obtained a judgment, then obtained a

writ of attachment, then sold the

pickers. Mr. Jones is only challenging

the procedures for prejudgment attach-

App. 153

ments, which do not authorize the final

disposal of the property.

Ww It is important to note that nothign

in the Supreme Court's’ opinion in

Mitchell required that the judge issuing

the writ have the authority to determine

the veracity of the creditor's allega-

tions. Under the Louisiana statute up-

held in Mitchell, the judge issued the

writ "if the nature of the claim and the

amount thereof, if any, and the ground

relied upon for the issuance of the writ

Clearly appear from specific facts ‘shown

by verified petition or affidavit." Id.

at 616. Our reading of Mitchell requires

that the issuing judge be convinced that

if what the creditor alleges is true, the

Creditor is entitled to a writ of

attachment. The j1dge must have the au-

thority to make sure that the affidavit

alleges the necessary grounds for issuing

the writ. Requiring any further investi-

gation at that point would vitiate

Mitchell and essentially require a pre-

seizure hearing in every case, which is

plainly not required. Further, as_ in

Mitchell where the attachment was based

On a vendor's lien, the specific facts

necessary to establish grounds for a

mechanic's lien are easily established by

documentary proof, thus decreasing the

likelihood that a seizure will prove to

have been a mistake. See Mitchell, 416

U.S. at 612, 95 S.Ct. at 725.

= The parties have spent a good deal

Of their effort on anneal aranina over

App. 154

whether Alabama Rule of Civil Procedure

64(b) applies. This rule provides that a

defendant may obtain a prejudgment (as

opposed to a preseizure) hearing on the

issue of dissolution of a writ of attach-

ment if the debtor serves ae written

request on counsel for the creditor

within five days from the date of seizure

of the property. The district court

erred in deciding that 64(b) was appli-

cable to this case.

By its terms, Rule 64(b) applies

only to actions in detinue and to actions

"whereby the owner of a security interest

in personal property seeks to recover

possession of said personal _ property

prior to judgment for ...." P & M's

actions did not fall into either cate-

gory. Detinue is an action for the reco-

very of personal property wrongfully de-

tained. Ivey v. Verbeck, 461 So.2d 813,

815-16 (Ala.Civ.App.1984). P & M sought

payment of repair bills; therefore its

actions were in debt, not detinue.

Foshee v. General Telephone Company of

the Southeast, 295 Ala. 70, 322 So.2d

715, 717 (1975). Nor did P & M's actions

satisfy the second category, for P & M

lacked an enforceable security interest

in the cotton pickers. A security inte-

rest is not enforceable and does not at-

tach unless either the secured party is

in possession of the collateral or the

debtor has signed a security agreement

that contains a description of the colla-

teral. Ala.Code § 7-9-203 (1975). P&M

had neither possession of the cotton

pickers not a security agreement signed

by Jones. Therefore, P & M could not

= a —— .

sateen a — ~~) — a * es 7 =

nce tren a |

——

App. 155

have proceeded under Rule 64(b). Cf. Ex

Parte Martin, 412 So. 2d 815, 8178

(Ala.Civ.App. 1982) (extra procedural

protections available under Rule 64(b) do

not apply to statutory landlord's liens

created under Alabama code S§§ 35-9-60

through 65).

This does not end the inquiry,

however. Just because Mr. Jones was not

entitled to a prompt hearing under the

elaborate procedures laid out for detinue

and security interests in Alabama Rule of

Civ.P. 64(b) does not mean that Alabama

law did not provide him with a perfectly

adequate opportunity to challenge the

writ under Ala.Code § 6-6-148, as

explained above.

10/ A.R.C.P. 65.1 also gives litigants

the right to challenge writs that are

wrongfully executed, and Mr. Jones did

file such a claim, post judgment, which

was denied by Judge Burney on

Nov. 29, 1983.

il/ Appellant seems to concede that

A.R.C.P. 64(b) provides an adequate op-

portunity to challenge a writ, yet never

explains why 64(b) provides more than an

opportunity to challenge a "wrongful" at-

tachment.

42/ Appellant also claims that while the

attachment order was being carried out,

one of the cotton pickers accidentally

fell off a truck and was damaged, thereby

App. 156

decreasing the amount Jones could obtain

for it at the judicial sale. Such negli-

gent acts do not support a cause of

action under S 1983. Daniels Vv.

Williams, 474 U.S. 327, 106 S.Ct. 662, 88

L.Ed.2d 662, 665 (1986).

13/ We find the defendant's argument

that they did not act pursuant to an

established state policy to be totally

without merit. However, given our dispo-

sition of the case, we need not address

the issue in more detail. Nor do we

express an opinion on P & M's arguments

regarding waiver, res judicata or respon-

deat superior.

14/ P & M also argues that they are

immune because their actions preceded the

Supreme Court's decision in Lugar v. Ed-

mondson Oil Co., 457 U.S. 922, 102 S.Ct.

2744, 73 L.Ed.2d 482 (1982), wherein the

court held that private actors who in-

voked presumptively valid attachment sta-

tutes were "state actors” for the purpose

of making out a § 1983 claim. Given our

disposition of -the case regarding the

substance of P & M's actions, we need not

reach this issue.

15/ The affidavit containing this asser-

tion was filed by itself, unconnected to

any document. We construe it as an

attempt to avoid summary judgment by

creating an issue of material fact. On

appeal Jones attempts to relate this to P

& M's "good faith." However, good faith

App. 157

in carrying out the sale (under Ala.Code

§ 8-1-100 which forbids arranged bidding)

is unrelated to the attachment claim, and

the claim regarding the sale falls for

failure to show state action.

16/ This section reads:

In the first and second cases

mentioned in section 6-6-41

[where a defendant lives out of

state or absconds] an attach-

ment may be issued by any judge

of the circuit court, return-

able to any county in- the

state, or by the clerk of the

circuit court, judge of probate

or any district court judge,

within their respective coun-

ties; in the third and fourth

cases, only by a judge of the

circuit court or judge of pro-

bate, returnable to any county.

17/

Under Alabama code § 6-6-143 a judge

must permit the plaintiff to amend any

defect of form of substance in an affida-

vit, bond or attachment. However, we

have not discovered any Alabama law which

indicates that the reviewing court must

allow a questionable writ to go forward.

Thus, we conclude that Alabama law does

not suffer from the same flaw which ren-

dered the Georgia attachment statute un-

constitutional in Johnson. In Georgia, a

judge, magistrate, justice of the peace,

or clerk of any court of record, when

presented with a creditor's affidavit and

——

ee =

ot ontnenntn a aaa

— — = — ~~ — ==

re x

—— Ps a CERN Saal ea = ines ei ena aren =

App. 158

bond, had the “duty” to issue an attach-

ment against the defendant. Johnson 581

F.2d at 534. We find nothing in Alabama

law to indicate that the issuing offi-

cer's discretion is so limited.

18/ Mr. Jones also intimates that the

Alabama statute is unconstitutional be-

cause it allows seizure without a showing

that the proerty to be seized is in immi-

nent danger of destruction. However, in

Mitchell, the Louisiana statute which was

approved as constitutional did not

require that the party seeking the writ

make such a _ showing. All that statute

required was that it be “within the

power" of the defendant to dissipate or

move the assets sought to be seized. 416

U.S. at 623, 94 S.Ct. at 1907. Proof of

imminent dissipation is clearly not a

constitutional prerequisite for attach-

ment.

/ As the majority notes, supra note 9,

P & M's action to enforce its mechanic's

lien did not constitute either an action

in detinue or an action to enforce a se-

curity interest. Therefore, P & M could

not have proceded under Rule 64(b).

ee YY eww =

App. 159

APPENDIX E

Samuel JONES, Jr.,

Plaintiff-Appellant,

Vv.

PREUIT & MAULDIN, a partnership

composed of E. F. Mauldin, individually,

and E. F. Mauldin as Executor or

Administrator of the Estate of

Leonard Preuit, Deceased;

E.F. Mauldin;

E.F. Mauldin as Executor or

Administrator of the Estate of

Leonard Preuit, Deceased; and

Preuit & Mauldin,

Defendants-Appellees.

No. 86-7415-l.

United States Court of Appeals,

Eleventh Circuit.

Nov. 24, 1987.

Appeal from the United States Dis-

trict Court for the Northern District of

Alabama.

Before RONEY, Chief Justice,

TJOFLAT, HILL, FAY, VANCE, KRAVITCH,

JOHNSON, HATCHETT, ANDERSON, CLARK and

EDMONDSON, Circuit Judges.

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING

IN BANC '

(Opinion July 24, 1987, llth Cir.,

1987, 822 F.2d 998)

BY THE COURT:

A member of this court in active

service having requested a poll on the

appliction for rehearing in banc and a

majority of the judges of this court in

active service having voted in favor of

granting a rehearing in banc,

IT IS ORDERED that the above cause

shall br reheard by this court in banc

with oral arugment during the week of

February 22, 1988, on or hereafter to be

fixed. The clerk will specify a briefing

schedule for the filing of in banc

briefs. The previous panel's opinion is

hereby VACATED.

App. 161

APPENDIX F

Samuel JONES, Jr.,

Plaintiff-Appellant,

PREUIT & MAULDIN, a partnership

composed of E. F. Mauldin, individually,

and E. F. Mauldin as Executor or

Administrator of the Estate of

Leonard Preuit, Deceased;

E.F. Mauldin as Executor or

Administrator of the Estate of

Leonard Preuit, Deceased; and

Preuvit & Mauldin,

Defendants-Appellees.

No. 86-7415.

United States Court of Appeals,

Eleventh Circuit.

Aug. 10, 1988.

Action was brought under § 1983 for

wrongful attachment. The United States

District Court for the Northern District

of Alabama, 586 F. Supp. 1563, dismissed

and appeal was taken. The Court of Ap-

peals, 763 F.2d 1250, reversed and re-

manded, and the District Court, 634

F. Supp. 1520, No. CV84-AR-5131-NW, Wil-

App. 162

liam M. Acker, Jrer Jer entered summary

judgment in favor of creditors. On ap-

peal, the Court of Appeals, 808 F.2d

1435, affirmed in part and reversed in

part. On petition for rehearing, the

Court of Appeals, 822 F.2d 998, affirmed.

On petition for rehearing and suggestion

for rehearing in bank, the previous panel

opinion was vacated, 833 F.2d 1436. The

Court of Appeals, Hill, Circuit Judge,

held that: (1) defendants were entitled

to defense of qualified immunity in

wrongful attachment action under § 1983,

unless defendants reasonably should have

known that their actions violated clearly

established constitutional rights, and

(2) creditors were entitled to defense

of qualified immunity in wrongful attach-

ment action under § 1983.

Affirmed.

Tjoflat, Circuit Judge, concurred

specially and filed opinion.

Vance, Circuit Judge, dissented and

filed opinion.

Johnson, Circuit Judge, dissented

and filed opinion in which Vance, Kra-

vitch, Hatchett, and Clark, Circuit

Judge, joined.

l. Civil Rights

Private defendants were entitled to

defense of qualified immunity in wrongful

attachment actions under § 1983, unless

defendants reasonably should have known

that their actions violated clearly esta-

blished constitutional rights. 42

U.S.C.A. § 1983.

2. Civil Rights

Creditor was entitled to qualified

immunity in wrongful attachment suit

brought under § 1983; creditor acted in

App. 164

good faith in proceeding under Alabama

attachment statutes and should not rea-

sonably have known that its actions vio-

lated debtor's clearly established cons-

titutional rights. 42 U.S.C.A. § 1983.

3. Constitutional Law

Debtor lacked standing to challenge

allegedly constitutionally offensive pro-

vision of Alabama attachment statute in-

sofar as Alabama statute authorized non-

judicial officer to issue wri* of

attachment as creditor presented its ap-

plication to circuit court judge, and

judge authorized issuance of writs of at-

tachment against debtor's equipment; deb-

tor was not affected by allegedly uncon-

stitutional portion of law. Ala. Code

1975, § 6-643.

4. Constitutional Law

When plaintiff seeks declaratory

judgment that state statute is unconsti-

App. 165

tutional, requirements for standing must

be strictly enforced.

5. Federal Courts

Court of Appeals may not declare law

unconstitutional based on hypothetical

situation which has not, in fact, oc-

curred.

Burr & Forman, C.V. Stelzenmuller,

F.A. Flowers, III, Birmingham, Ala., for

plaintiff-appellant.

Potts, Young, Blasingame & Putnam,

Robert W. Beasley, Florence, Ala., Don

Siegelman, Atty. Gen. of Ala., Ronald

C. Forehand, Asst. Atty. Gen., Montgo-

mery, Ala., Robert M. Weinberg, Bradley,

Arant, Rose & White, David G. Hymer,

Donald M. James, Birmingham, Ala., for

defendants-appellees.

Appeal from the United States Dis-

trict Court for the Northern District of

Alabama.

Before RONEY, Chief Judge, and TJO-

FLAT, HILL, FAY, VANCE, KRAVITCH, JOHN-

SON, HATCHETT, ANDERSON, CLARK, EDMONDSON

and COX, Circuit Judges.

App. 166

HILL, Circuit Judge:

This case involves the question of

whether qualified immunity may be as-

serted by private individuals who are de-

fendants in an action under 42

U.S.C. § 1983, and, if so, whether the

defendants in this case are entitled to

qualified immunity. A panel of this

court issued an original opinion on re-

hearing, 822 F.2d 998 (1987). The two

opinions concluded that qualified immu-

nity is available to such defendants,

but, on disposition of the case, came to

different results. We have taken the

case in banc to examine and resolve the

issues. We find that private individuals

may assert a good faith immunity defense

in a section 1983 action, and that these

defendants have established a claim to

such immunity.

I. FACTS

Samuel Jones, the plaintiff, was a

cotton farmer in Alabama in 1981. He

produced his own crop and, using his me-

chanical cotton picking equipment, har-

vested cotton for others. In July of

that year, Jones employed Preuit & Maul-

din (P & M) to repair three of his cotton

pickers. P & M deals in and services In-

ternational Harvester cotton pickers.

The total cost of the repairs was over

$10,000, and Jones represented that he

would pay for the repairs out of the pro-

ceeds from his harvesting work during the

coming fall season.

In February of 1982, the repair bill

had not been paid, in part because Jones

also owed money to the Farmers Home Admi-

nistration (FHA) and checks he received

for his cotton were made out jointly to

App. 168

Jones and the FHA. After repeated ef-

forts to have Jones pay, P & M's manager,

Preuit Mauldin, contacted an attorney,

D. Le Martin, about the possibility of

collecting on the debt.

Alabama law provides equipment re-

pairs with a mechanic's lien against ve-

hicles upon which they perform work.

Ala. Code § 35-11-1100 (1975). Equipment

of the kind involved here is subject to

such a lien. P & M's attorney thus pre-

pared documents and pleadings necessary

to file an action to foreclose the liens

asserted by P&M against Jones' three

cotton pickers. In addition, he prepared

an appliction for writs of attachment as

provided for under Alabama law.

Ala. Code § 35-ll1-111. The pleadings and

documents named Jones' other creditors as

involuntary plaintiffs because they had

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potential interests in the cotton

pickers.2/

On February 15, 1982 P&M filed

three separate actions in the Circuit

Court of Laurence County, Alabama _ to

foreclose on the mechanic's liens against

Jones' three cotton pickers. At the same

time P & M filed the affidavits for at-

tachment of the equipment and bonds to

secure Jones against a wrongful attach-

ment. It is not disputed that’ the

attachment proceedings were in conformity

with Alabama law. While the state law

appears to allow a clerk of court to is-

sue the writ of at tachment (Ala. Code

§ 6-643), these affidavits were presented

to the judge of the circuit court, who

authoriized the issuance of a writ for

each of the three pieces of equipment.

App. 170

Jones was served with process in the

lien foreclosure actions on April 8, 1982

and, on the same day, the writs of

attachment were executed upon the equip-

ment which was thereafter stored by the

sheriff. Further, on that day, two of

the involuntary plaintiffs filed a motion

for dissolution of the writ and requested

a hearing. Jones did not join in this

motion.— Jones also failed to respond

to the summons and complaint in the three

foreclosure actions, and a default judg-

ment was entered against him on May 19,

1982.2/

The circuit court held a hearing on

the involuntary plaintiffs' motion for

dissolution on June 15, 1982. The hear-

ing involved the relative priority of

P & M's liens as against the claims of

the other, involuntary, plaintiffs.

App. 171

Jones did not appear as an interested

party at the hearing, but, as a witness,

he testified for Citizens Bank as to the

bank's interest in his equipment. His

testimony supported the bank's position.

On July 2, 1982 the judge denied the mo-

tion for dissolution,— confirmed the

default judgments, and ordered the cotton

pickers sold. The equipment was ulti-

mately sold at auction on September 13,

1982.

Jones first took formal action as a

party in court in this case on August 16,

1983 when he filed a motion pursuant to

Rule 65.1 of the Alabama Rules of Civil

Procedure seeking a forfeiture of P & M's

attachment bond.2/ He alleged that the

attachment was wrongful, vexatious, and

without legal authority. A hearing was

held, and the motion was denied on Novem-

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ber 29, 1983. Jones apparently took no

further action in state cour t.&/

Jones filed the present action in

federal district court on February 24,

1984. In his complaint under 42

U.S.C. § 1983 Jones alleged that the pre-

judgment seizure of his cotton pickers

violated his rights under the due process

clause of the Fourteenth Amendment. The

district court intitially dismissed the

suit as barred by the applicable statute

of limitations, but a panel of this court

reversed that decision. 763 F.2d 1250

(llth Cir. 1985). Subsequently, Jones

moved for partial summary judgment

seeking a declaration that the Alabama

attachment procedure was unconstitutio-

nal. The defendants then moved for sum-

Mary judgment of Jones‘ section 1983

claims. The district court denied Jones'

App. 173

motion and granted summary judgment in

favor of the defendants.

II. DISCUSSION

A. Qualified Immunity

[l] The district court found that

P & M acted in good faith reliance upon

laws which were not clearly unconstitu-

tional. This finding raises the question

of whether private defendants in a sec~-

tion 1983 action are entitled to assert

the defense of qualified immunity. If

they are, private defendants would be

free from liability "as long as their ac-

tions could reasonably have been thought

consistent with the rights they are al-

leged to have violated." Anderson

v. Creighton, U.S. P 107

S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987).

Stated otherwise, immunity attaches un-

less that defendants reasonably should

App. 174

have Known that their actions violated

clearly es tablished constitutional

rights. Harlow v. Fitzgerald, 457

U.S. 800, 818-819, 102 S.Ct. 2727, 2738-

39, 73 L.Ed.2d 396 (1982). The Supreme

Court held that private defendants may be

subject to liability under section 1983

in Lugar v. Edmondson Oil Ce.» 457

U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482

(1982). The Court, however, expressly

reserved the question of whether such de-

fendants aré entitled to qualified immu-

nity. Id. at 942 n. 23, 102 S.Ct. at

2756 n. 23.2’ We find that private de-

fendants are entitled to a defense of

qualified immunity in wrongful attachment

actions under section 1983.

While section 1983 itself is silent

as to immunities, the Supreme Court has

held that the provision incorporates im-

App. 175

munities which were well established at

common law and which are consistent with

the purposes of the statute. Owen

v. City of Independence, 445 U.S. 662,

638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673

(1980); Pierson v. Ray, 386 U.S. 547,

554-55, 87 S.Ct. 1213, 1217-18, 18

L.Ed.2d 288 (1967) .8/ Thus, we must de-

termine whether the good faith reliance

on law claimed here was well established

as a defense at common law and whether

strong policy reasons support its appli-

cation in section 1983 actions. Two of

our fellow circuits have undertaken this

analysis and have held that qualified im-

munity attaches to private defendants

under section 1983. See Butler v. Buech-

ler, 706 F.2d 844, 850-53 (8th

Cir. 1983); Folsom Investment Co.

V. Moore, 681 F.2d 1032, 1037-38 (5th

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Circ. Unit A 1962). Two other circuits

have held that private defendants are not

entitled to qualified immunity. See

Downs v. Sawtelle, 574 F.2d 1 (lst Cir.),

cert. denied, 439 U.S. 910, 99 S.Ct. 278,

58 L.Ed.2d 255 (1978); Howerton v. Gabi-

ca, 708 F.2d 380, 385 n. 10 (9th

Cir. 1983).

At the time of section 1983's enact-

ment, the common law provided an action

for the tort of malicious prosecution,

which was used as a remedy for wrongful

attachment. Some jurisdictions also re-

cognized an independent tort of wrongful

attachment. The plaintiffs in such suits

were required to prove that the attach-

ment proceedings had been instituted by

defendants with malice and without pro-

bable cause. Buller, 706 F.2d at 851;

Folsom Investment Co., 681 F.2d at 1038.

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App. 177

See also W. Prosser, Handbook of the Law

of Torts, § 120 (4th ed. 1971). By re-

quiring proof of malice and lack of pro-

bable cause as an element of the clain,

the common law recognized a defense of

good faith and probable cause in wrongful

attachment suits. The Supreme Court has

held that the existence of a defense of

good faith and probable cause at common

law supports the availability of quali-

fied immunity in present day section 1983

suits. See Wood v. Strickland, 420

U.S. 308, 318-19, 95 S.Ct. 992, 999, 43

L.Ed.2d 214 (1975) (liability of public

school officials under state tort law for

malicious acts only establishes good

faith immunity under section 1983); Pier-

son, 386 U.S. at 555-57, 87 S.Ct. at

1218-19 (police officers entitled to good

faith immunity under section 1983 where

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App. 178

good faith and probable cause were a de-

fense in common law suits for false ar-

rest or false imprisonment). Thus, the

existence of a good faith and probable

cause defense in common law action for

wrongful attachment supports a finding

that qualified immunity is available to a

private defendant in a section 1983 suit.

We turn then to the policy reasons

Supporting the availability of qualified

immunity. Public officials have been

accorded immunity in order to ensure a

willing supply of public servants. Simi-

larly powerful policy considerations sup-

Port granting qualified immunity to pri-

vate individuals in wrongful attachment

Suits. When a citizen undertakes in good

faith to utilize a proceeding at law pro-

vided by his state legislature, he should

to so with confidence that he need not

App. 179

fear liability resulting from the legis-

lature's constitutional error of which he

was uMaware. Indeed, our system encour-

ages citizens to employ existing lawful

mechanisms to resolve their claims and

disputes. What we encourage we ought not

seek to punish. In the same way that we

wish to encourage citizens to undertake

public service, so must we encourage them

to settle their differences and assert

their claimed rights through the emp loy-

ment of legal mechanisms which they

believe, in good faith, are constitutio-

nal.

The opportunity to employ’ extant

legal procedures is not, however, without

limits. The available immunity is thus

qualified by the requirement that the de-

fendant must act in good faith. More

Specifically, in the present context the

App. 180

defendant is immune unless he knew or

reasonably should have known that his

actions violated clearly established con-

stitutional rights. This qualification

preserves the full deterrent force of

section 1983 by excluding from liability

only those who could not reasonably have

known that their conduct violated the fe-

deral constitution. No additional deter-

rence can be achieved by punishing indi-

viduals who could not reasonably have

known that their actions were improper.

Moreover, when an individual takes action

that he should have known violated con-

Stitutional rights, the individual is not

immune. We thus find that strong policy

considerations support the availability

of qualified immunity for private defen-

dants.

App. 181

Providing private citizens with qua-

lified immunity is also supported by the

general development of section 1983 law.

Prior to Lugar, the elements of a 1983

claim and the available defenses were ad-

dressed in terms of state officers,

agents, or employees as defendants. The

Supreme Court found that such public de-

fendants were entitled to various types

of immunity. See e.g., Wood, 420 U.S. at

318-19, 95 S.Ct. at 999; Pierson, 386

U.S. at 555-557, 87 S.Ct. at 1218-19.

Section 1983 provides for claims’ to

redress only state action, and prior to

Lugar thus represents a_ significant

change in the course of section 1983 law

in that it renders’ private citizens

liable as state actors for constitutional

Violations. The holding in Lugar is pre-

mised, however, on the finding that, in

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certain circumstances, private’ indivi-

duals may be equated with public actors

for section 1983 purposes. Since Lugar

rests on the premise that private and

public actors may sometimes be equated,

there is little reason to deny to private

defendants the type of immunity which has

been granted to public defendants. In-

deed, the logic of Lugar compels the con-

clusion that while private individuals

may sometimes be liable equally with

public defendants under section 1983,

they should never be held more liable.

To deny private individuals such immunity

as public actors enjoy would render pri-

vate individuals more liable than public

actors. This result would be inconsis-—

tent with Lugar. We therefore hold that

Private defendants are entitled to quali-

fied immunity in wrongful attachment

suits under section 1983.2/

App. 183

B. P & M's Qualified Immunity

[2] Having determined that private

defendants are entitled to qualified im-

munity in wrongful attachment actions

under section 1983, we must now address

whether P & M acted in good faith and is

therefore not liable. More specifically,

our inquiry is whether P & M reasonably

should have known that its actions vio-

lated Jones' clearly established consti-

tutional rights. This inquiry requires

an objective analysis of the law as it

existed at the time of P & M's action.

See Anderson. 107 S.Ct. at 3038 (The

inquiry “turns on the ‘objective legal

reasonableness' of the action."). st is

therefore a question of law.

Jones contends that in 1982 he had a

Clearly established right to notice and a

hearing before his property could be at-

App. 184

tached. In addressing this contension we

must evaluate the constitutional juris-

prudence extant at the time that his pro-

perty was attached. There were four Su-

preme Court cases on the books in 1982

dealing directly with the constitutiona-

lity of attachment provisions.

In Sniadach v. Family Finance Corpo-

ration of Bay View, 395 U.S. 337, 340, 89

S.Ct. 1820, 1822, 23 L.Ed.2d 349 (1969),

the Supreme Court struck down a Wisconsin

statute which authorized the prejudgment

garnishment of wages, which the court

noted were "a specialized type of pro-

perty presenting distinct problems in our

economic system.” The statute did not

provide for pregarnishment notice of

hearing. Furthermore, the creditor could

garnish the debtor's wages without demon-

Strating a lien or prior interest in the

ali

App. 185

property atttached, and the attachment

could be accomplished without - judicial

supervision. In the absence of more

restrictive safeguards, the Court held

the statute unconstitutional for failure

to provide pregarnishment notice and a

hearing.

The Supreme Court then struck down

the replevin statutes of Florida and

Pennsylvania in Fuentes _v. Shevin, 407

U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556

(1972). These provisions suffered from

several fatal inadequacies. First, they

authorized a seller of goods to obtain

repossession of their wares without judi-

cial order or participation. Second, the

writ could be issued by a court clerk on

"the bare assertion of the party seeking

the writ that he is entitled to one."

App. 186

finally, the debtor's only pos t-

deprivation remedy was the potential to

be heard as the defendant if the creditor

commenced an action to determine his

rights to repossession. Given these pro-

cedural inadequacies, in addition to the

absence of preseizure notice and a

hearing, the court declared both statutes

unconstitutional.

The pathway along which the Supreme

Court had been travelling in Sniadach and

Fuentes took an abrupt turn when, in

Mitchell v. W.T. Grant co., 416 U.S. 600,

94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the

Court upheld a Louisiana sequestration

provision which allowed attachment

without preseizure notice or a hear ing.

The opinion so limited the principles

enunciated in Fuentes that several

Justices concluded that Fuentes was es-~

App. 187

sentially overruled. See 416 U.S. at

623, 94 S.Ct. at 1908 (Powell, J., con-

curring) ("I think it fair to say that the

Fuentes opinion is overruled."); 416 U.S.

at 635, 94 S.Ct. at 1913 (Stewart, J.,

dissenting) ("(T]he court today has un-

mistakably overruled a considered deci-

sion of this court that is barely two

years old, without pointing to any change

in either societal perceptions or basic

constitutional understandings that might

justify this total disregard of stare de-

cisis."). Nevertheless, the court dis-

tinguished the Louisiana provision from

the statutes struck down in Fuentes, and

found that the Louisiana law was redeemed

by several alternatives safeguards.

First, the writ of sequestration was au-

thorized “‘only when the nature of the

Claim and the amount thereof, if any, and

App. 188

the grounds relied upon for the issuance

of the writ clearly appear from specific

facts' shown by verified petition or af-

fidvait." Mitchell, 416 U.S. at 616, 94

S.Ct. at 1904. Second, in the particular

district involved, the requisite showing

had to be made to a judge, and only a

judge was authorized to issue the writ.

Id. Third, the statute provided that

"It]he defendant by contradictory motion

may obtain the dissolution of a writ of

attachment or of sequestration, unless

the plaintiff proves the grounds upon

which the writ was issued." Id. at 622,

94 S.Ct. at 1907. The Supreme Court in-

terpreted this section co provide for an

immediate hearing to determine whether

the writ was appropriately issued. Id.

at 618, 94 S.Ct. at 1905. Finally, the

debtor was protected by a provision in

App. 189

the statute which allowed for damages for

wrongful issuance of the writ, and for

attorneys' fees, “whether the writ is

dissolved on motion or after trial on the

merits.” Id. at 617, 94 S.Ct. at

1905.20/

In the fourth Supreme Court case,

North Georgia Finishing v. Di-Chem, Inc.,

419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d

751 (1975), the court struck down a

Georgia attachment statute which did not

provide several of the safeguards ap-

proved of in Mitchell. First, the Geor-

gia law provided the following with res-

pect to the affidavits: "(t]he writ of

garnishment is issuable on the affidavit

of the creditor or his attorney, and the

latter need not have personal knowledge

of the facts. The affidavit, like the

one filed in this case, need only contain

App. 190

conclusory allegations." Id. at 607

(citation omitted). Second, the writ

could be issued by a court clerk without

judicial participation. Id. Finally,

the debtor could dissolve the garnishment

only by filing a bond to protect the cre-

ditor, and there was no provision for a

prompt post-seizure hearing at which the

creditor would be required to demonstrate

the grounds upon which the writ was

issued. Id. Without such alternative

safeguards, the statute was held uncon-

Stitutional for failure to provide pre-

seizure notice and a hearing.

Having traversed this somewhat

tangled trail of Supreme Court cases, we

Cannot say that P & M should have known

that it was violating any clearly esta-

blished constitutional rights. The

Supreme Court justices themselves

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strained to reconcile Fuentes, Mitchell

and Di-Chem, and in a case such as the

present one, where the creditor's actions

fall somewhere in the interstice, a rea-

sonable person would have been hard put

to identify any clearly established con-

stitutional rights or violations. As the

Supreme Court has stated, "[t]he contours

of the right must be sufficiently clear

that a reasonable official would under-

stand that what he is doing violates that

right. This is not to say that an offi-

cial action is protected by qualified im-

munity unless the very action in question

has previously been held unlawful, ...

but it is to say that in light of pre-

existing law the unlawfulness must be ap-

parent." Anderson, 107 S.Ct. at 3039.

Under a qualified immunity analysis, of

course, we need not rule upon the actual

App. 192

constitutional validity or invalidity of

the creditor's actions or of the state

statute under which he _ proceeded. We

need only examine whether the creditor

should have known that the actions vio-

lated clearly established constitutional

rights. Thus, so long as P & M's actions

were arguably commensurate with the pro-

tections approved of in Mitchell, P & M

is entitled to good faith immunity.

P & M's actions included the fol-

lowing. First, P & M presented a sworn

affidavit indicating the specific facts

entitling P & M to an attachment of

Jones’ equipment. The affidavit was made

upon personal knowledge and it indicated

that Jones was justly indebted to P & M

in a specific amount for labor and mate-

rials; that Jones had failed to pay for

the repairs after lawful demand; and that

App. 193

the attachment was not for the purpose of

vexing or harassing Jones. Second, P & M

presented the applications to a judge and

it was the judge who authorized the writ.

Third, Jones was properly served and no-

tified of the attachment. Fourth, P & M

posted bonds to protect Jones against

loss due to wrongful attachment. Final-

ly, vee law provided Jones with an

opportunity to challenge the attachment

11/

in a timely manner.— Based upon this

record, we cannot say that P & M should

have known that its actions violated

Jones' clearly established constitutional

rights. P & M's efforts were arguably

commensurate with the safeguards required

by Mitchell. At best, one May argue that

P & M's actions fall somewhere in the

nebulous area that lies between Mitchell

and Di-Chem. In either case, however, 4

App. 194

reasonable person could have believed

that the actions were constitutional. We

do not hold that P & M's actions were

constitutional, but only that the actions

did not violate clearly established con-

stitutional rights of which a reasonable

person should have known. P & M is thus

entitled to immunity insofar as the sei-

zure of Jones’ cotton may have violated

his constitutional rights.22/

Cc. Declaratory Relief

[3] Jones also moved the district

court for a partial summary judgment de-

claring the Alabama attachment statute

unconstitutional. The district court

denied the motion, and Jones now contends

that this was an abuse of discretion. We

readily agree with Jones that the Alabama

Statute stands on highly questio

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